Institut professionnel des agents immobiliers (Belgian Institute of Estate Agents) – CJEU Judgment (Belgium, 2013)

The Belgian Professional Institute of Real Estate Agents (IPI) had used private detectives to collect information on a real estate company that allegedly breached regulatory rules. The admissibility of the private detectives’ evidence in court was questioned on the grounds that the company’s agents had not been informed that their personal data would be processed by third parties in accordance with [https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31995L0046:en:HTML Article 11(1) of the Data Protection Directive 95/46]. IPI argued that the use of private detectives fell within the exception under [https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31995L0046:en:HTML Article 13(1)(d) of Directive 95/46], which permits the collection of data without consent for the prevention, investigation, detection and prosecution of breaches for regulated professions. Belgian law had specified exceptions for journalistic purposes, artistic or literary expression, public authorities exercising judicial police duties, police services and the European Centre for Missing and Sexually Abused Children. The Belgian Constitutional Court considered that the Belgian law did not strictly transpose exceptions comparable to [https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31995L0046:en:HTML Article 13 of Directive 95/46/EC]. It referred three questions to the ECJ for clarification on the obligations for Member States to implement Article 13 in national law: # Does [https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31995L0046:en:HTML Article 13(1)(d) of Directive 95/46] leave Member States free to choose whether or not to provide for an exception to the immediate obligation to inform under Article 11(1) to protect others’ rights and freedoms? # Do professional activities of private detectives (governed by national law) come within an exception referred to in [https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31995L0046:en:HTML Article 13(1)(d) and (g) of Directive 95/46]? # If they do not, is [https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31995L0046:en:HTML Article 13(1)(d) and (g) of Directive 95/46] compatible with Article 6(3) TEU – specifically, with the principle of equality and non-discrimination? With regard to the first question, the Court ruled that Member States have the option, but not an obligation, to transpose the list of exceptions provided under Article 13 of the Data Protection Directive 95/46/EC. Article 13 permits Member States to adopt exemptions allowing the collection and processing of personal data without notifying the data subject in seven circumstances: * To safeguard national security. * For defence. * For public security. * For the prevention, investigation, detection and prosecution of criminal offenses or breaches of ethics for regulated professions. * For an important economic or financial interests of a Member State. * For monitoring, inspection or regulatory functions. * For the protection of the data subject or the rights and freedoms of others. The CJEU based its interpretation on the emphasis on a high level of protection found in recitals 3, 8 and 10 of [https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31995L0046:en:HTML Directive 95/46]. In provisions such as these, [https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31995L0046:en:HTML Directive 95/46]'s aim of harmonisation must be balanced against the applicability of the Directive's general language in specific situations and the need to afford Member States some flexibility in this regard. With regard to the second question, the CJEU considered that the activity of a private investigator on behalf of a regulated body – in this case, the IPI – falls within the scope of [https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31995L0046:en:HTML Article 13(1)(d) of Directive 95/46]. Thus, if a Member State has chosen to implement an exception pursuant to [https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31995L0046:en:HTML Article 13(1)(d) of Directive 95/46], the professional body concerned and the private detectives acting on its behalf may rely on it. Accordingly, they need not inform the data subject pursuant to [https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31995L0046:en:HTML Article 10 and 11 of Directive 95/46].