Koalitsia ‘Demokratichna Bulgaria – Оbedinenie’ – CJEU Judgment (European Union, 2022)

The Bulgarian DPA and the Bulgarian Central Election Commission adopted guidelines on national electoral procedures. The guidelines addressed the problem of the processing of personal data by means of video recording in the context of elections and limited such a processing to specific circumstances. The guidelines are direct implementation of the GDPR. A political party claimed that the guidelines were unlawful, as the GDPR does not apply to national elections, which fall outside the scope of EU law. The Administrative Court of Sofia (Administrativen sad Sofia) annulled some provisions of the guidelines. The Bulgarian DPA and the Bulgarian Central Election Commission appealed before the Supreme Administrative Court (Varhoven administrativen sad). The Supreme Administrative Court referred the case to the CJEU. The CJEU stressed that the only exceptions to the GDPR scope of application are provided by Article 2(2) and (3) of the GDPR. These exceptions shall be interpreted strictly. In particular, Article 2(2)(b) GDPR states that the regulation does not apply to processing activities falling outside the scope of EU law. However, according to the Court, this provision exempts only activities carried out in the context of national security or related purposes. Activities relating to the organisation of elections do not fall within this category. In the merits, the CJEU also addressed the question whether a national DPA could limit or prohibit processing activities such as the filming of electoral process, including the vote count. The Court stated that such processing activities could in principle rely on Article 6(1)(e) GDPR, namely processing carried out in the public interest. However, the Bulgarian DPA, by limiting or prohibiting video-recording of vote count and other electoral processes implemented the principle of data minimisation under Article 5(1)(c) GDPR. In particular, the ban did not impair the public interest objective, which was to guarantee transparency (and thus lawfulness) of electoral processes. As a matter of fact, the guidelines did not prevent people from being present during the vote count, but only from recording it.