Italy, Tribunal of Milan, 4 January 2017 23838/2016
Tribunale di Milano
National case details
Registration ID: 23838/2016
Instance: 1st Instance
Case status: Final
Area of law
Safeguards for access to justice
Relevant principles applied
In judicial dialogueJudgement of the CJEU 13 May 2014, Case C-C-131/13 Google Spain SL, Google Inc. v Agencia Española de Protección de Datos (AEPD), Mario Costeja González, Case C-C‑230/14 Weltimmo s. r. o. v Nemzeti Adatvédelmi és Információszabadság Hatóság
25 October 2016
The Italian DPS issues an order to Yahoo!EMEA and Yahoo!Italia t
4 January 2017
The Tribunal of Milan rejects the appeal filed by Yahoo!EMEA and
Identification of the case
- Respect for private and family life (art. 7 CFREU)
- Protection of personal data (art. 8 CFREU)
- Right to an effective remedy and to a fair trial (art. 47 CFREU)
- Legislative Decree 196/2003
- Directive 95/46
- CFREU, art. 7
- CFREU, art.8
- CFREU, art. 47
- TFEU art. 16
Summary of the case
The case concerns a request filed by an Italian citizen, C.D.B., to the Italian DPS to issue an order to Yahoo!EMEA and Yahoo!Italia to delete personal data linking the applicant to a bankruptcy (C. P. case) occurred many years before. The applicant claimed to be damaged by the retention of his personal data in relation to the bankruptcy, since he had been eventually acquitted in the criminal proceedings thereof. The DPS granted the order of deletion. The above said companies challenged the order before the Tribunal of Milan, claiming that the Italian DPS had non territorial jurisdiction since the Yahoo!EMEA, an Irish company subject to Irish laws, was the only controller of the applicant’s personal data, whereas Yahoo!Italia could not be regarded as controller because it had non effective control on the contents coming up on Yahoo!search. The Tribunal of Milan rejected the appeal on the ground that the Italian DPS had jurisdiction in the case and upheld the order issued by the same DPS.
- Civil judicial enforcement
Order issued by the Italian DPS to Yahoo!EMEA and Yahoo!Italia to delete the applicant’s personal data processed by the internet search engine Yahoo! The DPS order has been upheld by the Tribunal of Milan
The Tribunal of Milan analyses in depth the issue of alleged lack of jurisdiction of the Italian DPS in the present case. The Italian judge, after pointing out that the damage suffered by the applicant had substantially occurred at the time when and in the place where the applicant had become aware that on the web his personal data was still related to the bankruptcy "C. P", recalls the domestic and European laws as well as European caselaw applicable in the case. The Directive 95/46/CE, read in the light of the Google Spain and Weltimmo judgments, provides that national provisions adopted by a Member State pursuant to the Directive are applied to the processing of personal data where the processing is carried out in the context of the activities of an establishment of the controller on the territory of that Member State. In this context, the ECJ has clarified that “the processing is carried out ‘in the context of the activities’ of that establishment, within the meaning of the directive, if the establishment is intended to promote and sell, in the Member State in question, advertising space offered by the search engine in order to make the service offered by the engine profitable”. Having regard to such judgments the Tribunal of Milan concludes that national provisions laying down the powers and competence of national DPS must apply in the instant case. The Italian judge again refers to Google Spain judgment to determine if the right to be forgotten claimed by the applicant must be granted, and comes to the conclusion that in the instant case there is no prevailing public interest to know that C.D.B. was initially believed to be involved in the bankruptcy.
Role of the Charter and role of the general principles on enforcement
The Tribunal of Milan points out that the right to an effective remedy guaranteed by art. 13 ECHR and art. 47 CFREU involves not only the right to access a judicial Court but also the right to access an administrative authority empowered to enforce the right claimed. To require, as assumed by the defendants, that the applicant should have turned to the Irish DPS would mean to interpose serious obstacles to the access to remedy, and, as a result, to reduce its effectiveness.
- Right to an effective remedy before a tribunal
- Explicit reference to Art. 6 ECHR
- Explicit reference to Art. 13 ECHR
The present judgment implicitly recalls art. 2 and art. 21 of Italian Constitution as the legal basis for the fundamental rights to respect for private life and to the protection of personal data, when it refers to Court of Cassation judgment, First Chamber, 5525/2012, which, explicitly recalls those provisions in deciding a case concerning the right to be forgotten.
The present judgment openly quotes art. 13 ECHR and art. 47 CFREU and refers to ECtHR ruling Leander v. Sweden to make it clear that administrative procedures before authorities responsible for enforcement of specific rights must be regarded as remedies in the sense of the above mentioned provisions. In this context, by recalling Google Spain and Weltimmo judgments, it then observes that interpretation of provisions ruling the access to a remedy should not be interpreted in a restricted way, otherwise the principle of effectiveness would be jeopardized. Consequently, the Tribunal remarks that the notion of establishment laid down in art. 4 of Directive 95/46/CE, as clarified in the ECJ caselaw, allows to retain the competence of Italian DPS.
The whole reasoning of the Tribunal of Milan revolves around the concrete application of the principle of effectiveness as laid out in the European legal system. The fundamental rights, such as the right to protection of personal data, need to be granted a thorough and effective protection, which implies that access to remedies must be made simple and not too expensive. This would not be the case if the applicant should resort to the Irish DPS. Difficulties implied in the obligation to use a different language as well to face a different legal system would inevitably reduce the concrete chances to access a remedy. Recognizing the territorial competence of Italian DPS on the ground of the notion of “establishment” clarified by the ECJ is in line with the principle of effectiveness.
Elements of judicial dialogue
- Dialogue among same level national courts within the same Member State
- Dialogue among CJEU and ECtHR
- Direct dialogue between CJEU/ECtHR and National court (out of preliminary reference procedure)
- Dialogue between high court - lower instance court at national level
- CJEU, C-131/12, Google Spain
- CJEU C-230/14, Weltimmo
- CJEU C-101/01, Lindqvist
- Leander v. Sweden, 26.3.1987, app.n. 9248/81
Conform interpretation with EU law as interpreted by the CJEU.
Citation also of foreign domestic judgment (German Supreme Federal Court, judgment 28..7.2015, VI ZR 340/14)
The purpose of the dialogue between the Tribunal of Milan and the CJEU was to ensure an interpretation of rules determining the territorial competence of national DPS in harmony with the principle of effectiveness.