Yesterday, Advocate-General Pedro Cruz Villalón gave his opinion in Weltimmo to the Court of Justice of the European Union (CJEU). The court may take this submission into account when considering its judgment, but is not bound to follow it.
In Weltimmo, the CJEU is being asked to consider what jurisdiction the Hungarian Data Protection Supervisor might have over a website in Slovakia, both Hungary and Slovakia being EU Member States. What makes this decision particularly interesting is that the EU’s legislature is currently considering the interaction between Europe’s various data protection supervisors as part of its reform of the EU’s data protection laws. The judgment in Weltimmo, like that of Schrems, has the potential to impact that debate, similar to the way the previous judgment of the CJEU in Google Spain has, which concerned a search engine established in the U.S.
Weltimmo concerns a website hosted in Slovakia which took advertisements for Hungarian real estate. These advertisements were free for the first month. after which, fees were charged. Requests for removal of the advertisement were disregarded, bills were issued and personal data was transferred to a debt collection agency when those bills went unpaid. Complaints were made to the Hungarian Data Protection Supervisor, who imposed a fine of 10 million Hungarian Forints (€32,000 or $35,800) on Weltimmo.
Weltimmo challenged the fine, arguing that the Hungarian Supervisor lacked the jurisdiction to impose a fine over a Slovakian website. A Hungarian court then referred various questions about jurisdiction to the CJEU.
The function of an Advocate-General is to make “reasoned submissions” on cases before the CJEU “… acting with complete impartiality and independence.” Villalón has made submissions on these questions, most notably as to how the establishment of a data processing operation may be determined. He is of that view that establishment is essentially a question of fact, which may be answered by looking at where physical activity occurs; Establishment may be effected by the presence of a single person working from a laptop, so long as that person has the necessary permanence within the Member State. He views other factors, such as where data was entered, the nationality of individuals or their country of residence as being of lesser importance.
What influence this opinion may have upon the judgment of the CJEU or the EU’s legislature remains to be seen. But the Advocate General’s focus upon fixed human and technical resources in determining where establishment is to be found may be significant. If such an approach is followed by the CJEU or EU legislature, then this might encourage web-based firms to adopt an entirely web-based model and avoid establishing local branches or agencies at all, since they might then only have to interact with a single data protection supervisor.
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