CJEU Case C-25/17 / Opinion

Proceedings brought by Tietosuojavaltuutettu
Policy area
Information society
Deciding body type
Court of Justice of the European Union
Deciding body
Advocate General
Decision date
ECLI (European case law identifier)
  • CJEU Case C-25/17 / Opinion

    Key facts of the case:

    Reference for a preliminary ruling — Protection of individuals with regard to the processing of personal data — Directive 95/46/EC — Scope — Definition of purely personal or household activity — Data collected and processed by the members of a religious community in the context of their door-to-door proselytising — Freedom of religion — Article 10(1) of the Charter of Fundamental Rights of the European Union — Definition of filing system — Definition of controller of the processing of personal data.

    Outcome of the case:


    Having regard to all the foregoing considerations, I propose that the Court answer the questions referred for a preliminary ruling by the Korkein hallinto-oikeus (Supreme Administrative Court, Finland) as follows:

    1. Door-to-door proselytising such as that at issue in the main proceedings does not fall within the exemption provided for in the first and second indents of Article 3(2) of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data.
    2. Article 3(1) of Directive 95/46, read in conjunction with Article 2(c) of that directive, must be interpreted as meaning that the set of personal data collected, otherwise than by automatic means, by members of a religious community, in the context of an activity such as that at issue in the main proceedings, on the basis of a specific geographical allocation and for the purposes of preparation for subsequent visits to people with whom a spiritual dialogue has been begun, is capable of constituting a filing system.
    3. Article 2(d) of Directive 95/46 must be interpreted as meaning that a religious community arranging proselytising activity in connection with which personal data is collected may be regarded as a controller even though it does not itself have access to the personal data collected by its members. For the purposes of determining the ‘controller’ within the meaning of Directive 95/46, there need be no written instructions, but it must be established, if appropriate by means of a body of evidence, that the controller is in a position to exert influence de facto over the activity of collecting and processing the personal data, which it is for the referring court to ascertain.
  • Paragraphs referring to EU Charter

    44) It remains, nevertheless, to be examined whether such an interpretation does not run counter to the other fundamental rights with which the protection of privacy and personal data must be reconciled ( 44 ) and whether it achieves a balanced weighting of that protection, on the one hand, against freedom of religion, of which the freedom to proselytise is a corollary, on the other. If the Court has hitherto held that the provisions of Directive 95/46 must necessarily be interpreted in the light of the fundamental rights set out in the Charter of Fundamental Rights of the European Union ( 45 ) (‘the Charter’) referring exclusively to Articles 7 and 8 thereof, ( 46 ) it is nevertheless equally clear that the other provisions of the Charter must be observed as well.

    45) Thus, Article 10(1) of the Charter provides that ‘everyone has the right to freedom of … religion. This right includes freedom to change religion or belief and freedom, either alone or in community with others and in public or in private, to manifest religion or belief, in worship, teaching, practice and observance’. The explanation on Article 10 of the Charter ( 47 ) states that that right corresponds to the right guaranteed in Article 9 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950 (‘the ECHR’), and, in accordance with Article 52(3) of the Charter, has the same meaning and scope. Consequently, freedom of religion may be limited only in the circumstances provided for in Article 9(2) of the ECHR, that is to say, any limitation must be prescribed by law and be necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.


    48) However, door-to-door preaching does not seem to me to threaten, strictly speaking, the negative aspect of freedom of religion as defined by the ECtHR. I would add that, in my view, there can be no negative aspect to the freedom to proselytise, the latter necessarily implying an attempt to convince a person who does not share that faith or who has none at all. If I may so express it, the freedom to preach necessarily implies the existence of a ‘target’ public which cannot be granted the negative right not to be preached at, or not to be the object of an attempt at proselytism, without rendering meaningless the freedom in question and its potential outcome, which is also protected by both Article 9 of the ECHR and Article 10(1) of the Charter, that is to say, the freedom to change one’s religion. ( 49 )


    50) In order for the interpretation of the second indent of Article 3(2) of Directive 95/46 proposed in point 42 of this Opinion to be altered by taking into account Article 9 of the ECHR and, consequently, Article 10(1) of the Charter, it would be necessary to find that making the activity at issue in the main proceedings subject to compliance with the rules of that directive constitutes an intolerable or disproportionate interference with the freedom to preach. However, in the case currently before the Court I find it hard to identify any such interference, the taking of notes and their transmission within the religious community being in no way of the same nature as preaching. Even if, however, such interference should be found to exist, it would still have to be ascertained whether it is provided for by law and whether it is necessary in a democratic society in order to attain the legitimate aim of protecting the rights and freedoms of others. However, the interference supposedly caused by the necessity of complying with the requirements of Directive 95/46 is indeed prescribed by law, in that it is specifically provided for by Directive 95/46 and, for the reasons set out above, is necessary in a democratic society for the protection of the rights of others, in particular the rights of the persons visited to privacy and to personal data protection, rights to which equal attention must be paid.

    51) Therefore, the protection afforded by Article 10(1) of the Charter cannot call into question the finding that the doorstep proselytising of members of the religious community is not a purely personal or household activity for the purposes of the second indent of Article 3(2) of Directive 95/46