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By Javier Fernández-Samaniego and Antonio Creus

On 8 February the Spanish Supreme Court put an end to the conflict between the Spanish Public Administration and ADigital—??formerly, the Federation of Electronic Commerce and Direct Marketing (FECEMD)—where several articles of the Spanish secondary regulation on the protection of personal data had been challenged.       
The Supreme Court had previously decided some of the questions discussed before it (Judgment of 15th July of 2010, RJ 2010\6271). However, it had not ruled on the non-compliance of Articles 10.2.a and 10.2.b of the secondary regulation on data protection with Article 7. f) of Directive 95/46/EC on data protection, instead submitting a request for preliminary ruling to the European Court of Justice (ECJ) on this matter.
The ECJ's response (joined cases C-468/10 and C-469/10) was conclusive, affirming that Article 7. f of Directive 95/46/EC preludes national rules which, in the absence of the data subject's consent, and in order to allow such processing of that data subject's personal data as is necessary to pursue a legitimate interest of the data controller or of the third party or parties to whom those data are disclosed, require not only that the fundamental rights and freedoms of the data subject be respected but also that the data should appear in public sources, thereby excluding, in a categorical and generalised way, any processing of data not appearing in such sources." The ECJ also declared that Article 7.f of Directive 95/46/EC has direct effect.
In the light of this, the Spanish Supreme Court has declared Article 10.2.b of the secondary regulation, which required that the data appeared in public sources, in addition to the legitimate interest of the data controller, void.
Account must be taken of the fact that even though article 6.2 of the Organic Law on data protection—which is drafted in similar terms to Article 10.2.b—has not been declared void - since the Spanish Supreme Court cannot declare the nullity of legislative acts. The inapplicability of such article derives from the ECJ's decision itself, as it declares the direct effect of Article 7. f  of Directive 95/46/EC, and its response is referred to all national rules.
In addition, with regards to sanctions imposed by the Spanish Data Protection Agency up until now, it is our understanding that there would be solid grounds for claims related to such sanctions, where the data controller had alleged a legitimate interest for the processing of such data.
The Madrid office of Bird&Bird LLP has acted on behalf of different applicants before the Spanish Courts and also before the ECJ. Bird&Bird LLP has acted before these courts along with lawyers from other law firms as well as with in-house counsels.
According to Antonio Creus, partner of the EU and Competition department in the Madrid office of Bird&Bird LLP, "this judgement shows, once again, the enormous importance of EU law in the development, interpretation and application of national legislations. As a lawyer, I must highlight the usefulness of the diverse means of action that EU law gives to European citizens against legislations and actions by Member States which contravene EU law. It is curious how a legal action against a recent secondary regulation (from 2007) can show the inadequacy of a 10-year-old organic law*. In this respect, it is worth noting that, even if the Spanish Supreme Court stated in the second legal ground of its judgment that, pursuant to Spanish Law it has no competence to declare the nullity of legislative acts, Article 6.2 of the Organic Law is not applicable as a direct result of the ECJ's decision, which declares the direct effect of Article 7. f of the Directive."
Further, Javier Fernández-Samaniego, managing partner and head of the data protection group in the Madrid office of Bird&Bird LLP, affirms that "the judgement of the Spanish Supreme Court and, in particular, the judgment of the European Court of Justice arrive in a critical moment, as the EU is undertaking a full review of the European legal framework on data protection. In this respect, the latest landmark has been the publication of a draft regulation on data protection at the end of January. However, as the ECJ has pointed out, in spite of regulation's declared objectives to approve one single law which will do away with the current fragmentation and costly administrative burdens, leading to savings for businesses of around €2.3 billion a year, helping to reinforce consumer confidence in online services and providing a much-needed boost to growth, jobs and innovation in Europe, this will not be worth the paper it is written on if it ignores the legitimate interest of data controllers."

*Organic laws are basic laws regulating mainly fundamental and Constitutional rights


Javier Fernández-Samaniego is managing partner and Antonio Creus is partner and head of the EU and Competition Group at the Madrid, Spain, office of Bird & Bird LLP.


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