Read about case C-131/12 below, and get a detailed analysis of the ECJ Google judgement on privacy in our article ‘EU Court Google judgement: not so much a landmark decision’.
Among the judgements passed by the Court of Justice of the European Union this past May is the ruling in case C-131/12 Google Spain and Google where the Court decided that an internet search engine operator is responsible for the processing that it carries out of personal data which appear on web pages published by third parties.
Consequently, if following a search of a person’s name, the list of results displays a link to a web page which contains information on the person in question, that data subject may approach the operator directly and where the operator does not grant his request, bring the matter before the competent authorities in order to obtain, under certain conditions, the removal of that link form the list results.
Find out the details of case C-131/12 in Aphaia’s May 2014 EU regulatory case law overview below, and for a more detailed analysis of the judgement, check out the article ‘EU Court Google judgement: not so much a landmark decision’ from Aphaia’s Chief Consultant Dr Bostjan Makarovic.
Information society
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The request for a preliminary ruling concerned the interpretation of Directive 95/46/EC and of Article 8 of the Charter of Fundamental Rights of the European Union. It has been made in proceedings between, on the one hand, Google Spain and Google Inc. and, on the other, the Spanish Data Protection Agency – ‘the AEPD’ and Mr Costeja González concerning a decision by the AEPD upholding the complaint lodged by Mr Costeja González against those two companies and ordering Google Inc. to adopt the measures necessary to withdraw personal data relating to Mr Costeja González from its index and to prevent access to the data in the future.
Mr Costeja González lodged with the AEPD a complaint, which was based on the fact that, when an internet user entered Mr Costeja González’s name in the search engine of the Google Search, he would obtain links to two pages of La Vanguardia’s newspaper, on which an announcement mentioning Mr Costeja González’s name appeared for a real-estate auction connected with attachment proceedings for the recovery of social security debts. AEPD rejected the complaint in so far as it related to La Vanguardia, taking the view that the publication by it of the information in question was legally justified as it took place upon order of the Ministry of Labour and Social Affairs and was intended to give maximum publicity to the auction in order to secure as many bidders as possible. On the other hand, the complaint against Google Spain and Google Inc was upheld since AEPD considered that operators of search engines are subject to data protection legislation given that they carry out data processing for which they are responsible and act as intermediaries in the information society. The referring court raised the question of what obligations are owed by operators of search engines to protect personal data of persons concerned who do not wish that certain information, which is published on third parties’ websites and contains personal data relating to them that enable that information to be linked to them, be located, indexed and made available to internet users indefinitely.
The Court ruled that Directive 95/46/EC is to be interpreted as meaning that the activity of a search engine consisting in finding information published or placed on the internet by third parties, indexing it automatically, storing it temporarily and, finally, making it available to internet users according to a particular order of preference must be classified as ‘processing of personal data’ when that information contains personal data. The operator of the search engine must be regarded as the ‘controller’ in respect of that processing. Processing of personal data is carried out in the context of the activities of an establishment of the controller on the territory of a Member State, within the meaning of that provision, when the operator of a search engine sets up in a Member State a branch or subsidiary which is intended to promote and sell advertising space offered by that engine and which orientates its activity towards the inhabitants of that Member State. The operator of a search engine is obliged to remove from the list of results displayed following a search made on the basis of a person’s name links to web pages, published by third parties and containing information relating to that person, also in a case where that name or information is not erased beforehand or simultaneously from those web pages, and even, as the case may be, when its publication in itself on those pages is lawful. It should inter alia be examined whether the data subject has a right that the information in question relating to him personally should, at this point in time, no longer be linked to his name by a list of results displayed following a search made on the basis of his name, without it being necessary in order to find such a right that the inclusion of the information in question in that list causes prejudice to the data subject. As the data subject may, in the light of his fundamental rights, request that the information in question no longer be made available to the general public on account of its inclusion in such a list of results, those rights override, as a rule, not only the economic interest of the operator of the search engine but also the interest of the general public in having access to that information upon a search relating to the data subject’s name. However, that would not be the case if it appeared, for particular reasons, such as the role played by the data subject in public life, that the interference with his fundamental rights is justified by the preponderant interest of the general public in having, on account of its inclusion in the list of results, access to the information in question.
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Environment
[toggle title=” Case C 521/12 – Briels and Others – Assessment and authorisation of the implications for a protected site of a plan or project” layout=”box”]
In Case C‑521/12 – Briels and Others the Court of Justice of the European Union interpreted Article 6(3) of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora as meaning that a plan or project not directly connected with or necessary to the management of a site of Community importance, which has negative implications for a type of natural habitat present thereon and which provides for the creation of an area of equal or greater size of the same natural habitat type within the same site, has an effect on the integrity of that site. Such measures can be categorised as ‘compensatory measures’ only if the conditions laid down therein are satisfied.
The request for a preliminary ruling has been made in proceedings between T.C. Briels and Others and the Minister for Infrastructure and the Environment, concerning the project for widening the A2‘s-Hertogenbosch-Eindhoven motorway. That project affected the Natura 2000 site which was designated by the Netherlands authorities as an SAC for, in particular, the natural habitat type molinia meadows, which is a non-priority habitat type. The Minister provided for a certain number of measures aimed at lessening the environmental impact of the A2 motorway project. Briels and Others brought an action against the two ministerial orders before the referring court. They took the view that the Minister could not lawfully adopt the orders for the A2 motorway project, given the negative implications of the widening of the A2 motorway for the Natura 2000 site in question.
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Competition
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In Case C‑36/12 P, Armando Álvarez v Commission, appellant asked the Court to set aside the judgment of the General Court of the European Union in Case T‑78/06 Álvarez v Commission by which its action for annulment was dismissed in part of Commission Decision relating to a proceeding pursuant to Article 81 and for annulment or, in the alternative, reduction of the fine which was imposed upon it by that decision.
The Court of Justice dismissed the appeal and stated that General Court did not make an error of law when it held that in circumstances in which a parent company is presumed to exercise decisive influence over its subsidiary, the Commission was entitled to presume that, in view of the fact that it owned 98.6% of the shares in ASPLA, Armando Álvarez had exercised decisive influence over the conduct of its subsidiary. Nor can Armando Álvarez validly maintain that it was not able to exercise its rights of defence to counter the Commission’s use of that presumption, while it accepted the existence of that presumption even though it challenged its legality in the light of the presumption of innocence. The General Court also correctly examined the arguments put forward by Armando Álvarez to rebut the presumption of the Commission of actual control arising from the shareholding links between Armando Álvarez and its subsidiary. The presence, at a number of meetings of the undertakings involved in the cartel, of Armando Álvarez’s most senior managers, together with the fact that the latter was informed about the other meetings by reports drawn up by representatives from ASPLA, were sufficient to prove that Armando Álvarez played a direct part in the discussions within the cartel. The fact that representatives from Armando Álvarez had not, according to the latter, been given authority to take part in the cartel was irrelevant. In its reasoning, the General Court merely assessed the relevance and plausibility of the arguments which Armando Álvarez put forward to rebut the presumption concerned and to challenge the additional indicia which the Commission had taken into account in forming the view that the company had exercised decisive influence over its subsidiary. In the context of its appraisal of the evidence submitted to it, the General Court could quite properly give an indication that there was an overlap between the managing bodies of the two companies, without that appraisal altering the basis on which liability was attributed to Armando Álvarez. Armando Álvarez has also no ground for maintaining that it did not have the opportunity to exercise its rights of defence in respect of a further ground of liability. In context of its alternative plea, the General Court did not breach its obligation to state the reasons while the General Court, is not required to provide an account that follows exhaustively and one by one all the arguments articulated by the parties to the case.
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[toggle title=”Case C-35/12 P – ASPLA v Commission – Agreements, decisions and concerted practices in plastic industrial bags market — Single and continuous infringement” layout=”box”]
In Case C-35/12 P – ASPLA v Commission the Court of Justice of the European Union dismissed the appeal of ASPLA to set aside the judgment of the General Court of the European Union in Case T‑76/06 ASPLA v Commission by which the General Court dismissed the action for annulment in part of Commission Decision relating to a proceeding pursuant to Article 81 [EC] and for annulment or, in the alternative, reduction of the fine which was imposed upon it by that decision.
The Court dismissed ASPLA’s statements that the judgment under appeal contains errors relating to the legal characterisation of the facts and the conclusions which were drawn from that characterisation as regards the application, so far as ASPLA is concerned, of the concept of a single and continuous infringement. General Court pointed out, that the undertakings to which the decision at issue was addressed had taken part in cartel ‘to varying degrees’ and concluded that the evidence which had been submitted to it did not show that ASPLA’s degree of involvement in the cartel was any different from that which the Commission had attributed to it in the decision at issue, ASPLA’s participation being shown by a set of sufficiently precise and consistent indicia. The Commission had correctly concluded that, even though ASPLA did not take part in the subgroups, it was involved in the overall cartel. The General Court, justified that finding by pointing out, inter alia, that ASPLA had taken part in the cartel at its central level, that is to say, at the level where impetus was generated. Contrary to what is maintained by ASPLA, such an appraisal of the evidence is compatible with a well-established line of authority which has accepted that the existence of unlawful conduct may be inferred from a number of coincidences and indicia which, taken together, may, in the absence of another plausible explanation, constitute evidence of an infringement of the competition rules. ASPLA submits that the General Court made an error of law in rejecting as inadmissible, because it was new, the argument which ASPLA had expounded at the hearing, which alleged that the Commission had made a manifest error of assessment in calculating its market share not on the basis of ASPLA’s own sales, but by attributing to ASPLA the sales made by its parent company, Armando Álvarez, as well. The General Court concluded that in order to challenge the calculation of its market share, ASPLA should specifically stated that before the General Court at the stage of the application. The General Court was fully entitled, to reject ASPLA’s argument that the Commission had made an error of calculation in determining its market share by including the sales of its parent company in that share. In so far as ASPLA maintains, in the alternative, that the General Court made an error of law in failing to determine of its own motion whether the reasons stated in the decision at issue were sufficient to explain why the Commission had decided to depart from the rules governing the calculation of fines, as it had applied them to the other undertakings participating in the same cartel, it should be noted that, ASPLA did not allege difference in treatment with regard to the determination of its market share for the purpose of setting the fine before the General Court, so argument concerning such a difference in treatment must be regarded as new and it cannot be examined at the stage of the appeal.
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