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.


If you want to comment on this post, you need to login.


Board of Directors

See the esteemed group of leaders shaping the future of the IAPP.

Contact Us

Need someone to talk to? We’re here for you.

IAPP Staff

Looking for someone specific? Visit the staff directory.

Learn more about the IAPP»

Daily Dashboard

The day’s top stories from around the world

Privacy Perspectives

Where the real conversations in privacy happen

The Privacy Advisor

Original reporting and feature articles on the latest privacy developments

Privacy Tracker

Alerts and legal analysis of legislative trends

Privacy Tech

Exploring the technology of privacy

Canada Dashboard Digest

A roundup of the top Canadian privacy news

Europe Data Protection Digest

A roundup of the top European data protection news

Asia-Pacific Dashboard Digest

A roundup of the top privacy news from the Asia-Pacific region

Latin America Dashboard Digest

A roundup of the top privacy news from Latin America

IAPP Westin Research Center

Original works. Groundbreaking research. Emerging scholars.

Get more News »

IAPP Communities

Meet locally with privacy pros, dive deep into specialized topics or connect over common interests. Find your Community in KnowledgeNet Chapters, Sections and Affinity Groups.

IAPP Job Board

Looking for a new challenge, or need to hire your next privacy pro? The IAPP Job Board is the answer.

Join the Privacy List

Have ideas? Need advice? Subscribe to the Privacy List. It’s crowdsourcing, with an exceptional crowd.

Find a KnowledgeNet Chapter Near You

Talk privacy and network with local members at IAPP KnowledgeNet Chapter meetings, taking place worldwide.

Find more ways to Connect »

Find a Privacy Training Class

Two-day privacy training classes are held around the world. See the complete schedule now.

The Privacy Core™ Library Has Evolved

Privacy Core™ e-learning essentials just expanded to include seven new units for marketers. Keep your data safe and your staff in the know!

Online Privacy Training

Build your knowledge. The privacy know-how you need is just a click away.

Upcoming Web Conferences

See our list of upcoming web conferences. Just log on, listen in and learn!

Train Your Team

Get your team up to speed on privacy by bringing IAPP training to your organization.

Let’s Get You DPO Ready

There’s no better time to train than right now! We have all the resources you need to meet the challenges of the GDPR.

Learn more »

CIPP Certification

The global standard for the go-to person for privacy laws, regulations and frameworks

CIPM Certification

The first and only privacy certification for professionals who manage day-to-day operations

CIPT Certification

The industry benchmark for IT professionals worldwide to validate their knowledge of privacy requirements

FIP Designation

Recognizing the advanced knowledge and issue-spotting skills a privacy pro must attain in today’s complex world of data privacy.

Certify Your Staff

Find out how you can bring the world’s only globally recognized privacy certification to a group in your organization.


The IAPP’S CIPP/E and CIPM are the ANSI/ISO-accredited, industry-recognized combination for DPO readiness. Learn more today.

Learn more about IAPP certification »

Are You Ready for the GDPR?

Check out the IAPP's EU Data Protection Reform page for all the tools and resources you need.

IAPP-OneTrust PIA Platform

New U.S. Government Agency privacy impact assessments - free to IAPP members!

IAPP Communities

Meet locally with privacy pros, dive deep into specialized topics or connect over common interests. Find your Community in KnowledgeNet Chapters, Sections and Affinity Groups.

Privacy Vendor List

Find a privacy vendor to meet your needs with our filterable list of global service providers.

More Resources »

Europe Data Protection Intensive 2017

The Intensive is sold out! But cancellations do happen—so hurry and get on the wait list in case more seats become available.

Global Privacy Summit 2017

The world’s premier privacy conference returns with the sharpest minds, unparalleled programs and preeminent networking opportunities.

Canada Privacy Symposium 2017

The Symposium returns to Toronto this spring and registration has opened! Take advantage of Early Bird rates and join your fellow privacy pros for another stellar program.

The Privacy Bar Section Forum 2017

The Privacy Bar Section Forum returns to Washington, DC April 21, delivering renowned keynote speakers and a distinguished panel of legal and privacy experts.

Asia Privacy Forum 2017

The Forum returns to Singapore for exclusive networking and intensive education on data protection trends and challenges in the Asia Pacific region. Call for Speakers open!

Privacy. Security. Risk. 2017

This year, we're bringing P.S.R. to San Diego. The Call for Speakers is now open. Submit today and be a part of something big! Submission deadline: February 26.

Europe Data Protection Congress 2017

European policy debate, multi-level strategic thinking and thought-provoking discussion. The Call for Speakers is open until March 19.

Sponsor an Event

Increase visibility for your organization—check out sponsorship opportunities today.

More Conferences »

Become a Member

Start taking advantage of the many IAPP member benefits today

Corporate Members

See our list of high-profile corporate members—and find out why you should become one, too

Renew Your Membership

Don’t miss out for a minute—continue accessing your benefits

Join the IAPP»