Ombudsman – Order (Poland, 2020)

The UODO clarified that the obligation for judges and prosecutors to submit declarations about their membership in associations, and to publish them in the Bulletin of Public Information is unequivocally stipulated by law. Therefore, the processing of personal data of the above mentioned persons does not violate the law on personal data protection. The proceedings were initiated ex officio after the Ombudsman submitted a letter to the President of the UODO on 9 March 2020. The Ombudsman indicated, that a requirement to publish such statements in the Bulletin of Public Information impose a limitation on the privacy of judges and prosecutors. When examining the case of processing of data that judges and prosecutors submit concerning their membership in associations, the President of UODO took into account the current jurisprudence of the Voivodeship Administrative Court, according to which if the processing of personal data is based on the national law, it is in compliance with the provisions on personal data protection and there are no grounds for the President of UODO to exercise the corrective powers provided for in Article 58(2) GDPR. The proceedings revealed that the obligation to submit statements by judges and prosecutors results from the amendment of the Law on the Common Court System, the Act on the Supreme Court and certain other legal acts. Processing of personal data of judges and prosecutors is therefore the result of the above mentioned persons fulfilling the obligation clearly defined in the law. The processing is thus based on Article 6(1)(c) GDPR, according to which the processing of personal data is allowed if it is necessary to fulfill a legal obligation imposed on the controller. Therefore, in the present proceedings, the President of the UODO did not find any grounds to declare a breach of the provisions on personal data protection. In the context of the above, the President of the UODO did not identify any grounds to order the restriction of processing pursuant to Article 70(1) of the Polish Act on the Protection of Personal Data. As it has been pointed out, the obligation to submit the above mentioned statements by judges and prosecutors and to make them public in the Bulletin of Public Information clearly results from the provisions of national law. Thus, it is difficult to state that further processing of such data may cause serious effects if it is carried out in compliance with generally applicable law. The President of UODO, in his justification of the decision, also referred to the Ombudsman's argument that challenged the unconstitutionality of the provision which obliges judges and prosecutors to disclose information which may reveal their world views, religious beliefs, or sexuality. The President of UODO has proclaimed himself to be incompetent to resolve this issue. He pointed out that the Constitutional Tribunal is competent to assess the constitutionality of the provisions, to which the Ombudsman has the right to refer a matter. The Ombudsman has the right to submit motions on the compliance of acts with the Constitution to the Constitutional Tribunal. It should be stressed that unlike the Ombudsman, the President of UODO does not have the competence to submit the above mentioned motions to the Constitutional Tribunal.