Data Protection Insider, Issue 112

Data Protection Insider, Issue 112 - DPI 6

– ECtHR: North Macedonia Overstepped Margin of Appreciation in Adoption Secrecy 

On 14th May, the ECtHR ruled that North Macedonia had not struck an appropriate balance between the interests of adopted persons to know their origins and the interests of their parents to remain anonymous in Mitrevska v. North Macedonia. As to the facts of the case, the applicant was adopted as a child and is now an adult. She suffers from depression and speech impairments and wished to learn at least the medical history of her biological parents, i.e. to receive at least anonymous information about them. However, her request was refused by all administrative and judicial authorities she had turned to, because completed adoptions are treated by domestic law as an official secret with no possibility to provide any information in the adoption file. The applicant complained about the complete impossibility to receive information about her origins under Article 8 ECHR. The Court examined the complaint from the perspective of the positive obligations of the respondent Member State to protect the rights of the applicant under Article 8 ECHR, in casu, to receive information about her biological parents, and whether North Macedonia had overstepped its margin of appreciation. It noted that: ‘As to the margin of appreciation afforded to the domestic authorities, the Court notes, on the one hand, that the access of adopted children to information concerning their biological origins is a sensitive moral and ethical issue that involves striking a balance between private and public interests. Hence the State should be accorded a wider margin of appreciation. On the other hand, the right to an identity, which includes the right to know one’s parentage, is an integral part of the notion of private life. In such cases, particularly rigorous scrutiny is called for when weighing up the competing interests (…). This narrows the State’s margin of appreciation.’ The Court noted that in the present case domestic law did not allow the authorities to weigh up the competing interests at stake and to consider disclosing at least anonymous medical information to the applicant because all information is treated as an official secret. The Court concluded that North Macedonia had thus overstepped its margin of appreciation. We note that the facts of the case differ somewhat from other cases concerning the confidentiality of information of adopted children or children in foster care and, in this regard, that the case is worth reading.


– ECtHR: Effective Judicial Review Needed When Information Is Withheld on National Security Grounds 

On 16th May, the ECtHR ruled that the Czech Republic did not breach Article 8 ECHR when withholding information about the reasons for the withdrawal of the applicant’s residence permit on national security grounds due to the availability of judicial review in Mirzoyan v. the Czech Republic. As to the facts of the case, the applicant, a foreign national, had lived in the Czech Republic over a long period of time, and had founded his family there. When he applied for the renewal of his residence permit, the application was turned down on national security grounds. The applicant wished to challenge the refusal and for that purpose he requested information about the refusal, including regarding the national security grounds. He was not provided access to the contested information on national security grounds. He complained that his procedural rights were breached, which lead to an interference also with his right to family life. The Court decided to examine whether the limitations on the procedural rights were counterbalanced by appropriate safeguards. It noted that it ‘does not lose sight of the fact that the applicant was not allowed to examine the classified information and that his representative was only able to consult the pieces describing his activities generally’. However, it noted that the Supreme Administrative Court examined the complaint and offered adversarial proceedings, where the applicant was represented by a lawyer. The domestic court had, according to the ECtHR, examined the reasons for not disclosing the information to the applicant and upheld their non-disclosure. Thus, the ECtHR concluded that the domestic proceedings as a whole offered sufficient safeguards. We note that although data protection was not mentioned in the case, the present case does contribute to the ongoing discussions about the balance between the rights of the individual to have access to information concerning themselves, including when national security is at stake, and the right of Member States to protect ongoing investigations, etc. Editorial Note: The judgment also examines the interference with the applicant’s family life, which we did not examine in our summary.


– CJEU Rules Anti-Doping case Inadmissible –

On 7th May, the CJEU delivered its verdict in the case of NADA and Others. The case essentially concerned an Austrian professional athlete, who was found guilty of having breached anti-doping rules. The applicant requested, however, that information about them – including their name, details of the breach, and the period of suspension – not be published by the authorities. On review of the decision concerning the applicant, the arbitration committee chose to reserve its decision concerning publication, and, in this regard, posed several questions to the CJEU, which the AG, in their Opinion, bundled into four sets of considerations.

  1. Does publication of information on a specific doping offence constitute data concerning health under Article 9?
  2. Does public disclosure of a name, a breach of anti-doping rules, and the penalty incurred, constitute processing of personal data on criminal convictions or offences under Article 10?
  3. Does processing of personal data relating to acts breaching anti-doping rules make the USK – Unabhängige Schiedskommission (Independent Arbitration Committee, Austria) – an ‘official authority’ under Article 10?
  4. Is public disclosure – publication on an accessible website – of an athlete’s data, alongside information on anti-doping rule violations and consequent suspensions, compatible with lawfulness and data minimisation under Article 5(1)(a) and (c) and Article 6(3)?

Diverging from the AG’s Opinion, however, the Court decided that the case was inadmissible. It did so on the grounds that the referring arbitration committee failed to fulfil independence criteria required to classified as a ‘court or tribunal’, such as to be able to refer questions under the preliminary ruling procedure to the CJEU. The Court stated that ‘the applicable national legislation does not ensure that the members of the USK are protected from external pressure, be it direct or indirect, that is liable to cast doubt on their independence, with the result that that body does not satisfy the external aspect of the requirement for a court or tribunal to be independent.’ Editorial note: as we previously covered the AG’s Opinion, and had remarked that the case both dealt with interesting subject matter, and interesting points of law, we chose to follow up on the decision in the case, despite the inadmissibility ruling of the Court.


DPI Editorial Team

Dara Hallinan, Editor: Legal academic working at FIZ Karlsruhe. His specific focus is on the interaction between law, new technologies – particularly ICT and biotech – and society. He studied law in the UK and Germany, completed a Master’s in Human Rights and Democracy in Italy and Estonia and wrote his PhD at the Vrije Universiteit Brussel on the better regulation of genetic privacy in biobanks and genomic research through data protection law. He is also programme director for the annual Computers, Privacy and Data Protection conference.

Diana Dimitrova, Editor: Researcher at FIZ Karlsruhe. Focus on privacy and data protection, especially on rights of data subjects in the Area of Freedom, Security and Justice. Completed her PhD at the VUB on the topic of ‘Data Subject Rights: The rights of access and rectification in the AFSJ’. Previously, legal researcher at KU Leuven and trainee at EDPS. Holds LL.M. in European Law from Leiden University.

Hinterlasse eine Antwort