CJEU - C-247/23 - Deldits

CJEU - C-247/23 Deldits
Court:	CJEU
Jurisdiction:	European Union
Relevant Law:	Article 16 GDPR Article 23(1)(e) GDPR Article 8(2) Charter
Decided:
Parties:	Országos Idegenrendészeti Főigazgatóság
Case Number/Name:	C-247/23 Deldits
European Case Law Identifier:	ECLI:EU:C:2024:747
Reference from:	Fővárosi Törvényszék (Hungary)
Language:	24 EU Languages
Original Source:	Judgement
Initial Contributor:	fb

AG Collins opined that a transsexual data subject has the right to the rectification of their gender in the asylum register under Article 16 GDPR and Article 8(2) of the Charter. While the authority can ask to prove the inaccuracy, the data subject cannot be asked to prove they have undergone gender reassignment surgery.

English Summary

Facts

The data subject is a trans person who was granted refugee status in Hungary. When applying for this status, they pointed out that they identified as male and relied on their transsexuality as the ground for his recognition as a refugee. However, the Hungarian National Directorate-General for Immigration Policing (Országos Idegenrendészeti Főigazgatóság) recorded them in the register as female.

In 2022, the data subject, pursuant to Article 16 GDPR, submitted a request to the controller to rectify the asylum register in two particulars: a change of the name under which they had been registered and a change of gender from female to male. On 11 October 2022, the controller rejected the request, arguing that the documents provided by the data subject did not prove that they had undergone gender reassignment surgery and that the applicant’s gender had changed.

Therefore, the data subject brought proceedings before the Budapest High Court (Fővárosi Törvényszék). This court, having doubts regarding the interpretation of Article 16 GDPR, stayed the proceedings and referred the following questions to the CJEU:

1. Must Article 16 of the GDPR be interpreted as meaning that, in connection with the exercise of the rights of the data subject, the authority responsible for keeping registers under national law is required to rectify the personal data relating to the gender of that data subject recorded by that authority, where those data have changed after they were entered in the register and therefore do not comply with the principle of accuracy established in Article 5(1)(d) of the GDPR?
2. If the answer to the first question referred is in the affirmative, must Article 16 of the GDPR be interpreted as meaning that it requires the person requesting rectification of the data relating to his or her gender to provide evidence in support of the request for rectification?
3. If the answer to the second question referred is in the affirmative, must Article 16 of the GDPR be interpreted as meaning that the person making the request is required to prove that he or she has undergone gender reassignment surgery?’

The data subject argued that, pursuant to Article 5(1)(d) GDPR, the accuracy of data must be assessed having regard to the purposes for which they are processed. In this case, the purpose of the asylum register is to identify refugees.

On this point, the data subject pointed out that where the gender of a transgender person as recorded does not reflect the identity by which they are recognised in public, that record does not facilitate their identification and may even expose them to discrimination and harassment.

The Hungarian Government submitted that, according to Article 6(2) and 6(3) GDPR, the data subject’s right to have an entry in an official record, such as the asylum register, rectified may be exercised under the law of a Member State only and not by direct reliance upon Article 16 GDPR.

Advocate General Opinion

First question

First, AG Collins noted that the question asked by the referring court does not reflects the facts. While the question seems to imply that the data subject’s change of gender identity occurred after the recognition of their refugee status in 2014, facts suggest that this occurred prior to it, since the change of gender identity appears to have been the basis upon which Hungary recognised the data subject’s refugee status. Therefore, the AG suggested the CJEU to take these facts into account and consider that the rectification request aimed at correcting an original error and not to amend that record in order to reflect a change in circumstances.

Secondly, the AG recalled that the right to rectification is enshrined both in Article 16 GDPR but also in Article 8(2) of the Charter.

Thirdly, the AG pointed out that since the accuracy of personal data may vary depending on the context in which it is processed, the purpose of the collection of data has a direct bearing upon an assessment of its accuracy. In the case at hand, one of the purposes of the asylum register is to identify a person and gender is considered to be one of the identifiers.

On this point, the AG noted that when Hungary recognised the data subject’s refugee status, they identified as a transgender male.

Therefore, the AG opined that the entry of the data subject’s gender as “female” in the asylum register thus appears to have been inaccurate for the purposes of Article 5(1)(d) GDPR.

Fourthly, the AG did not agree with the Hungarian Government’s argument. He noted that Article 16 GDPR applies to processing activities that rely on Article 6(1)(e) GDPR. He noted that, on the one hand, the former does not specify the manner in which the right of rectification is to be exercised and Member States could establish a legal framework to ensure the practical application of this right. On the other hand, they cannot limit and derogate from the right to rectification enshrined in Article 8(2) of the Charter.

The AG acknowledged that the right to rectification is not absolute and could be limited under certain conditions, according to Article 23 GDPR. In particular, Article 23(1)(e) GDPR relates to the “keeping of public registers kept for reasons of general public interest”. Therefore, according to the AG, a Member State could theoretically rely on Article 23(1)(e) GDPR to partially restrict the right to rectification in order to ensure the reliability and consistency of public records, including records of civil status. However, nothing in the case at hand suggests that such a law has been implemented in Hungary.

Moreover, this cannot on itself be an obstacle to granting an application to rectify the gender in an asylum register so as to record their gender identity as it was at the time it was entered therein, since this type of application only serves to enhance the reliability of that register and the accuracy of the data recorded therein.

Therefore, the AG advised the Court to answer that Article 16 GDPR, read in the light of Article 5(1)(d) GDPR, is to be interpreted as meaning that a national authority responsible for keeping a register of refugees is, upon application, required to rectify personal data on the gender of a refugee which that authority had incorrectly recorded at the time they were entered in that register.

Second and third questions

According to the AG, the second and third questions seek to know which evidence a data subject should submit in support to their gender rectification request under Article 16 GDPR and whether that person may be required to furnish proof of having undergone gender reassignment surgery.

First, the AG noted that Article 16 GDPR does not specify anything about the evidence a data subject should provide. Therefore, this needs to be assessed on a case-by-case basis. This means that, in certain cases, the data subject might be required to produce evidence that may be reasonably necessary to establish the inaccuracy of that data in the light of the purposes for which they were collected or processed.

However, the AG emphasised that the data subject does not have to claim or to demonstrate a particular interest in the rectification of inaccurate data or that the alleged inaccuracy causes any harm. In the case at hand, the AG opined that it is sufficient for the data subject to prove that Hungary recognised their refugee status in 2014 on the basis of their pre-existing transgender identity and that the asylum register does not accurately record that identity.

Finally, as for the necessity to have undergone gender reassignment surgery, the AG noted that the European Court of Human Rights has repeatedly hold that imposing this requirement goes against the ECHR. Therefore, imposing such a requirement would have the effect of negating the right to rectify inaccurate data on the gender of a transgender data subject.

Therefore, the AG suggested the CJEU to answer that a national authority responsible for keeping a register of refugees may require a data subject requesting rectification of data to produce evidence to establish the inaccuracy of that data in the light of the purposes for which they were collected or processed but may not be required to prove they have undergone gender reassignment surgery.

Holding

The judgement has not been issued yet.

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