Peter Puškár v Finančné riaditeľstvo Slovenskej republiky and Kriminálny úrad finančnej správy.
Date: 2017-09-27
33


It must be held at the outset, on the basis of the information provided by the referring court, that the data included on the contested list, namely, inter alia, the names of some natural persons, including Mr Puškár, are ‘personal data’ within the meaning of Article 2(a) of the Directive 95/46, since they are ‘information relating to an identified or identifiable natural person’ (see, to that effect, judgments of 16 December 2008, Satakunnan Markkinapörssi and Satamedia, C‑73/07, EU:C:2008:727, paragraph 35, and of 1 October 2015, Bara and Others, C‑201/14, EU:C:2015:638, paragraph 29).
34


Both their collection and their use by the various tax authorities at issue in the case in the main proceedings therefore constitute ‘processing of personal data’ within the meaning of Article 2(b) of that directive (see, to that effect, judgments of 20 May 2003, Österreichischer Rundfunk and Others, C‑465/00, C‑138/01 and C‑139/01, EU:C:2003:294, paragraph 64; of 16 December 2008, Huber, C‑524/06, EU:C:2008:724, paragraph 43; and of 1 October 2015, Bara and Others, C‑201/14, EU:C:2015:638, paragraph 29).
36


In that regard, it should be borne in mind that the activities which are mentioned by way of example in that article are, in any event, activities of the State or of State authorities unrelated to the fields of activity of individuals (see judgments of 6 November 2003, Lindqvist, C‑101/01, EU:C:2003:596, paragraph 43, and of 16 December 2008, Satakunnan Markkinapörssi and Satamedia, C‑73/07, EU:C:2008:727, paragraph 41).
37


The Court has also considered that the activities mentioned by way of example in the first indent of Article 3(2) of Directive 95/46 are intended to define the scope of the exception which is provided for there, with the result that that exception applies only to the activities which are expressly listed there or which can be classified in the same category (see judgment of 6 November 2003, Lindqvist, C‑101/01, EU:C:2003:596, paragraph 44).
38


In so far as it renders inapplicable the system of protection of personal data provided for in Directive 95/46 and thus deviates from the objective underlying it, namely to ensure the protection of the fundamental rights and freedoms of natural persons with regard to the processing of personal data, the exception provided for in the first indent of Article 3(2) of that directive must be interpreted strictly.
41


Moreover, it is clear from the case-law of the Court that tax data constitute ‘personal data’ within the meaning of Article 2(a) of Directive 95/46 (see, to that effect, judgment of 1 October 2015, Bara and Others, C‑201/14, EU:C:2015:638, paragraph 29).
43


Article 13(1) of Directive 95/46 necessarily presupposes that the national measures referred to therein, such as those necessary to safeguard an important economic or financial interest of a Member State in the field of taxation, fall within the scope of that directive (see, by analogy, judgment of 21 December 2016, Tele2 Sverige and Watson and Others, C‑203/15 and C‑698/15, EU:C:2016:970, paragraph 73).
49


In that regard, it must be borne in mind that, according to the Court’s settled case-law, in the context of the cooperation between the Court and the national courts provided for in Article 267 TFEU, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine, in the light of the particular circumstances of the case, both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of EU law, the Court is, in principle, bound to give a ruling (see, in particular, judgment of 26 April 2017, Stichting Brein, C‑527/15, EU:C:2017:300, paragraph 55 and the case-law cited).
50


Questions on the interpretation of EU law referred by a national court in the factual and legislative context which that court is responsible for defining, and the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance (see judgment of 17 July 2014, YS and Others, C‑141/12 and C‑372/12, EU:C:2014:2081, paragraph 63). The Court may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of EU law that is sought is unrelated to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, in particular, judgment of 26 April 2017, Stichting Brein, C‑527/15, EU:C:2017:300, paragraph 56 and the case-law cited).
54


Article 22 of Directive 95/46 requires specifically that Member States shall provide for the right of every person to a judicial remedy for any breach of the rights guaranteed him by the national law applicable to the processing of personal data in question.
55


That directive, which does not contain any provisions governing specifically the conditions under which that remedy may be exercised, does not however exclude the possibility that national law may also establish remedies before the administrative authorities. On the contrary, it should be pointed out that Article 22 expressly states that it is ‘without prejudice to any administrative remedy for which provision may be made, inter alia before the supervisory authority referred to in Article 28 [of Directive 95/46], prior to referral to the judicial authority’, that Member States are to provide for the right of every person to that judicial remedy.
57


It should be recalled that, according to settled case-law of the Court, under the principle of sincere cooperation laid down in Article 4(3) TEU it is for the courts of the Member States to ensure judicial protection of a person’s rights under EU law, in addition, Article 19(1) TEU requiring Member States to provide remedies sufficient to ensure effective judicial protection in the fields covered by EU law (see, inter alia, judgments of 8 November 2016, Lesoochranárske zoskupenie VLK, C‑243/15, EU:C:2016:838, paragraph 50, and of 26 July 2017, Sacko, C‑348/16, EU:C:2017:591, paragraph 29).
58


That requirement on the part of the Member States corresponds to the right enshrined in Article 47 of the Charter, entitled ‘Right to an effective remedy and to a fair trial’, which provides that everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal (see, to that effect, judgment of 16 May 2017, Berlioz Investment Fund, C‑682/15, EU:C:2017:373, paragraph 44, and of 26 July 2017, Sacko, C‑348/16, EU:C:2017:591, paragraph 30).
59


It follows that, when they set out detailed procedural rules for legal actions intended to ensure the protection of rights conferred by Directive 95/46, the Member States must ensure compliance with the right to an effective remedy and to a fair hearing, enshrined in Article 47 of the Charter, which constitutes a reaffirmation of the principle of effective judicial protection (see, to that effect, judgments of 15 September 2016, Star Storage and Others, C‑439/14 and C‑488/14, EU:C:2016:688, paragraph 46, and of 26 July 2017, Sacko, C‑348/16, EU:C:2017:591, paragraph 31).
60


It follows that the characteristics of the remedy provided for in Article 22 of Directive 95/46 must be determined in a manner that is consistent with Article 47 of the Charter (see, by analogy, judgments of 17 December 2015, Tall, C‑239/14, EU:C:2015:824, paragraph 51, and of 26 July 2017, Sacko, C‑348/16, EU:C:2017:591, paragraph 31).
61


In the present case, it is common ground in the case in the main proceedings that, by making the admissibility of a legal action brought by a person alleging infringement of his right to protection of personal data guaranteed by Directive 95/46 subject to the prior exhaustion of the administrative remedies available, the national legislation at issue introduces an additional step for access to the courts. As the Advocate General also stated in point 53 of her Opinion, such a procedural rule would delay access to a judicial remedy and could also cause additional costs to be incurred.
62


The obligation to exhaust additional administrative remedies thereby constitutes, as a precondition for bringing a legal action, a limitation on the right to an effective remedy before a court within the meaning of Article 47 of the Charter which, in accordance with Article 52(1) of the Charter can therefore be justified only if it is provided for by law, if it respects the essence of that right and, subject to the principle of proportionality, if it is necessary and genuinely meets objectives of general interest recognised by the EU or the need to protect the rights and freedoms of others (see, to that effect, judgment of 15 September 2016, Star Storage and Others, C‑439/14 and C‑488/14, paragraph 49).
63


It must be held that, in the case in the main proceedings, it is clear from the order for reference that the legal basis for the obligation to exhaust available administrative remedies is set out in Paragraph 250v(3) of the Code of Civil Procedure, in such a way that it must be regarded as being provided for by national law (see, to that effect, judgment of 15 September 2016, Star Storage and Others, Case C‑439/14 and C‑488/14, paragraph 50 and the case-law cited).
64


Moreover, that obligation respects the essential content of the fundamental right to effective judicial protection, as enshrined in Article 47 of the Charter. That obligation does not call into question that right as such. An additional procedural step is merely imposed in order to exercise it.
65


Nonetheless, it must still be determined whether the obligation to exhaust available administrative remedies corresponds to an objective in the general interest and whether, in the affirmative, it complies with the principle of proportionality within the meaning of Article 52(1) of the Charter.
66


It is clear from the order for reference and from the observations of the Slovak Government that the reasons for the mandatory introduction of an administrative complaint before bringing a legal action are linked, first, to the administrative authority, if it accepts the applicant’s arguments, to remedy more quickly an unlawful situation when it finds that the complaint is well founded, and to avoid seeing unexpected actions brought against that authority in court. Second, those reasons relate to the fact that such an obligation contributes to the efficiency of the judicial procedure where that authority does not share the applicant’s opinion and where the latter then lodges a legal action, because the judge can then rely on the existing administrative record.
67


Thus it appears that the obligation to exhaust available administrative remedies is intended to relieve the courts of disputes which can be decided directly before the administrative authority concerned and to increase the efficiency of judicial proceedings as regards disputes in which a legal action is brought despite the fact that a complaint has already been lodged. The obligation therefore pursues legitimate general interest objectives.
68


As is clear from point 62 of the Advocate General’s Opinion, the obligation to exhaust the available administrative remedies appears appropriate for achieving those objectives, no less onerous method than that obligation suggesting itself as capable of realising those objectives as efficiently.
69


Moreover, it is not evident that any disadvantages caused by the obligation to exhaust available administrative remedies are clearly disproportionate to those objectives (see, by analogy, judgment of 18 March 2010, Alassini and Others, C‑317/08 to C‑320/08, EU:C:2010:146, paragraph 65).
70


In that regard, it should be recalled that the Court held that the principle of effective judicial protection, reaffirmed in Article 47 of the Charter, did not preclude national legislation making the application of legal action in the field of electronic communications and consumer services subject to the prior implementation of out-of-court conciliation and mediation procedures provided that those procedures do not result in a decision which is binding on the parties, that they do not cause a substantial delay for the purposes of bringing legal proceedings, that they suspend the period for the time-barring of claims and that they do not give rise to costs — or give rise to very low costs — for the parties, and only if electronic means are not the only means by which the settlement procedure may be accessed and interim measures are possible in exceptional cases where the urgency of the situation so requires (see, to that effect, judgments of 18 March 2010, Alassini and Others, C‑317/08 to C‑320/08, EU:C:2010:146, paragraph 67, and of 14 June 2017, Menini and Rampanelli, C‑75/16, EU:C:2017:457, paragraph 61).
71


Those various conditions apply mutatis mutandis to the obligation to exhaust the available administrative remedies at issue in the case in the main proceedings.
72


It is therefore for the referring court to examine whether the practical arrangements for the exercise of administrative remedies available under Slovak law do not disproportionately affect the right to an effective remedy before a court referred to in Article 47 of the Charter.
96


Although Article 13(1) of Directive 95/46 limits the scope of the rights provided for in Articles 10 to 12 of that directive where such a restriction constitutes a necessary measure to safeguard, in particular, the prevention, investigation, detection and prosecution of criminal offences or an important economic or financial interest of a Member State, including taxation and monitoring, inspection or regulatory functions, it expressly requires that such restrictions are imposed by legislative measures (see, to that effect, judgment of 1 October 2015, Bara and Others v Commission, C‑201/14, EU:C:2015:638, paragraph 39).
104


In accordance with the provisions of Chapter II of Directive 95/46, entitled ‘General rules on the lawfulness of the processing of personal data’, subject to the exceptions permitted under Article 13 of that directive, all processing of personal data must comply, first, with the principles relating to data quality set out in Article 6 of the directive and, secondly, with one of the criteria for making data processing legitimate listed in Article 7 of that directive (see, to that effect, judgment of 1 October 2015, Bara and Others, C‑201/14, EU:C:2015:638, paragraph 30).
105


It is also important to recall that it follows from the objective of ensuring an equivalent level of protection in all Member States, pursued by that directive, that Article 7 thereof sets out an exhaustive and restrictive list of cases in which the processing of personal data can be regarded as being lawful (see judgment of 24 November 2011, ASNEF and FECEMD, C‑468/10 and C‑469/10, EU:C:2011:777, paragraph 30).
112


It is important, in that regard, to ensure that the principle of proportionality is respected. The protection of the fundamental right to respect for private life at the European Union level requires that derogations from the protection of personal data and its limitations be carried out within the limits of what is strictly necessary (see, to that effect, judgment of 21 December 2016, Tele2 Sverige and Watson and Others, C‑203/15 and C‑698/15, EU:C:2016:970, paragraph 96 and the case-law cited).
120


It should be borne in mind that the requirements concerning the content of a request for a preliminary ruling are expressly set out in Article 94 of the Court’s Rules of Procedure, of which the national court should, in the context of the cooperation instituted by Article 267 TFEU, be aware and which it is bound to observe scrupulously. Thus, the referring court must set out the precise reasons that led it to raise the question of the interpretation of certain provisions of EU law and to consider it necessary to refer questions to the Court of Justice for a preliminary ruling. The Court has previously held that it is essential that the national court should give at the very least some explanation of the reasons for the choice of the EU law provisions which it seeks to have interpreted and of the link it establishes between those provisions and the national legislation applicable to the proceedings pending before it (judgment of 9 March 2017, Milkova, C‑406/15, EU:C:2017:198, paragraphs 72 and 73 and the case-law cited).
121


Those requirements also appear in the recommendations of the Court of Justice of the European Union to national courts and tribunals in relation to the initiation of preliminary ruling proceedings (OJ 2016 C 439, p. 1).
123


It should also be borne in mind that, in accordance with the Court’s settled case-law, the justification for making a request for a preliminary ruling is not for advisory opinions to be delivered on general or hypothetical questions, but rather that it is necessary for the effective resolution of a dispute concerning EU law (see judgment of 21 December 2016, Tele2 Sverige and Watson and Others, C‑203/15 and C‑698/15, EU:C:2016:970, paragraph 130).