You are here:

Spain/ Supreme Court/ Roj: STS 2336/2019

Community of Madrid v. State Administration, Mr. José and Others

Deciding Body type:
National Court/Tribunal
Deciding Body:
The Supreme Court. Contentious Chamber
Decision date:
08/07/2019

Key facts of the case:

The Contentious-Administrative Chamber, Third Section of the Supreme Court has heard an appeal in cassation registered under number RCA/1966/2018, filed by the lawyer of the COMMUNITY OF MADRID against the sentence of the First Section of the Contentious-Administrative Chamber of the National Audience of December 1, 2017, which dismissed administrative action No 1558/2015 brought against the decision of the Director of the Data Protection Agency of 16 April 2015 declaring that the Madrid Housing Institute (Consejería de la Vivienda de Madrid, Consejería de Transportes, Infraestructuras y Vivienda de la Comunidad de Madrid) has infringed the provisions of Article 6.1 of Organic Law 15/1999, of 13 December, on the Protection of Personal Data, considered as serious in article 44.3 d) of the aforementioned Organic Law. The ADMINISTRATION OF THE STATE and Mr. José Y OTROS have been appealed.

The case concerns the inclusion of tenants’ information in a Tender for the sale of 32 developments (rented and leased housing, garages, storerooms and premises) belonging to the Madrid Housing Institute, which was published in the Community of Madrid Official Bulletin (BOCAM), on 7 June 2013. The Tender with all the Annexes was published on the contracting party's profile, in an open file, and on the Community of Madrid's website, on 7 June 2013, and it was available for 19 days. The documentation that could be downloaded contained data relating to dwellings and premises (Annex I), as well as a list of litigious proceedings in which 41 housing units of tenants were included in various legal proceedings (Annex VIII). In the information regarding the address of the housing the name and surnames of the tenants were included, although not their ID card.

 

After setting out the jurisprudential doctrine set out in the corresponding legal basis of the ruling, which includes Article 8 of the Charter of Fundamental Rights, regarding the applicative interpretation of Article 6 of Law 15/1999 of 13 December on the Protection of Personal Data, the Chamber ruled that the appeal in cassation lodged by the lawyer of the COMMUNITY OF MADRID against the sentence of the First Section of the Contentious-Administrative Chamber of the National Audience of December 1, 2017, issued in the contentious-administrative appeal number 1558/2015, had no place.

Key legal question:

The dissemination of personal data in open, that is to say, with unlimited access, on a Public Administration website on the occasion of the processing of an administrative contracting procedure is subject to compliance with the obligations established in Organic Law 15/1999, of 13 December, on the Protection of Personal Data, and, specifically, to the legal duty of having to obtain the consent of those affected regarding the collection and processing of data that are not essential, necessary or pertinent for the adequate and regular exercise of public functions. The exception provided for in article 6.2 of the aforementioned Organic Law cannot be interpreted in an expansive manner.

 

The question on which the Contentious-Administrative Chamber of the Supreme Court should rule, with the aim of forming jurisprudence, focused on elucidating whether, within the framework of a procedure for the sale by the Administration of litigious real estate, it is possible to dispense with the consent of the affected party, by publicising the tender specifications, which contain certain personal data, as the budget for the application of the exception provided for in Article 6.2 of Organic Law 15/1999, of 13 December, on the Protection of Personal Data is concurrent.

In more precise terms, the Court should decide whether it is legitimate to dispense with the consent of the data subject in this case, as this is a case in which the disclosure of personal data identificativos of the names and surnames of natural persons is formally protected by a law (article 140 of Law 33/2003, of 3 November, on Public Administration Assets), and the Administration considers that the dissemination of such data is necessary for the exercise of its own functions within the scope of its powers, or if, on the contrary, the unequivocal consent of the same should be required.

Outcome of the case:

The High Court rejected the lawsuit declaring that there was no place for the cassation appeal filed by the lawyer of the COMMUNITY OF MADRID against the judgment of the First Section of the Contentious-Administrative Chamber of the National Audience of December 1, 2017, issued in the contentious-administrative appeal number 1558/2015. And it ruled that the Public Administration responsible for the processing of data must comply with the legal duty, consisting of obtaining the consent of the affected persons in accordance with the provisions of article 6 of Organic Law 15/1999, of 13 December, on the Protection of Personal Data, in order not to incur in the infraction provided for in article 44.3 of the aforementioned Organic Law, which considers a serious infraction to treat personal data in violation of the principles and guarantees established in said law.