Court case 0856/20.0BELRA – Court Ruling (Portugal, 2021)

A citizen requested that the Tax Office provided her/him with the National Tax Number (NIF) of the owner of a neighbouring building and land, so as to request a check on the exact boundaries of the lands owned by both. The Tax Office, alleging Article 68 of the National Tax Law and the Data Protection Act, refused the request. The petitioner considered that the NIF of the owner of a building does not fall under the definition of what constitutes data that is protected by tax secrecy, as such data should be publicly available. Does the tax number of the owner of a building constitute personal data or data that should be publicly available? The appeal concerns the decision of the Administrative Court of Leiria, which dismissed the request for information made to the Portuguese Tax Office to provide the Portuguese National Tax Number (NIF) of an alleged neighbour, in order to contact this third party for purposes of checking the boundaries of an allegedly adjacent land. Before, it had been solidly anchored in the Portuguese jurisprudence a flexible approach to the duty of confidentiality and the protection of taxpayer data, with the Courts generally accepting that the NIF was not part of the sphere of intimacy in private life, and so, not personal data, but considered as publicly available data on taxpayers. In fact, it was the general understanding that publicly available personal data could be revealed, which encompassed public data or personal data contained in an official public document, as is the case, for example, with the NIF, as well as fiscal data that does not reflect or denounce the tax status of taxpayers. However, with Decree-Law no. 14/2013, of 28 January, the legislator started to adopt a much more rigid position regarding this information, with the new Law reflecting an increasing concern with the protection and treatment of individual data. This Decree modified the Portuguese General Tax Law (Lei Geral Tributária, or LGT) and added a new exception to the duty of confidentiality - contained in paragraph e) of paragraph 2 of Article 64, that states that the National Tax Number and home address associated with the National Tax Number are both considered “personal data”. Therefore, the NIF is now considered as personal data, with the exception of statistical and research purposes, and should only be made available under the strict terms provided for in the LGT. This understanding of the NIF as personal data in 2013 remains in conformity with the concept of "personal data", currently translated into Article 4(1) of the GDPR. With the amendment of 2013 and the introduction of a new exception in the LGT, the Court could only conclude that the legislator not only considers that the two pieces of information - NIF and the tax address - are "personal data", but only seems to accept the availability of both in the strict circumstances expressly provided in the Law. As for the right to information that the Appellant (the other neighbour) claims to have been violated, it is clarified that this is not an absolute right and that, consequently, it cannot prevail over the protection granted, also constitutionally, to the right to privacy and the requirement of a corresponding duty of confidentiality imposed on the Tax Office in regard to the data elevated by law to the condition of "personal data".