CJEU - C-434/16 - Nowak

CJEU - C-434/16 Peter Nowak
Court:	CJEU
Jurisdiction:	European Union
Relevant Law:	Article 15 GDPR Article 2(a) Directive 95/46/EC
Decided:	20.12.2017
Parties:	Peter Nowak Data Protection Commissioner
Case Number/Name:	C-434/16 Peter Nowak
European Case Law Identifier:	ECLI:EU:C:2017:994
Reference from:
Language:	24 EU Languages
Original Source:	Judgement
Initial Contributor:	Frederick Antonovics

The CJEU held that written answers submitted by a candidate at a professional examination and any comments made by an examiner with respect to those answers constitute personal data.

English Summary

Facts

The claimant, Peter Nowak, was a trainee accountant who failed one open book examination for the fourth time. He initially tried challenging the result of that examination, but his claim was rejected.

Shortly after, he made an access request to the Institute of Chartered Accountants of Ireland ('CAI') seeking all the personal data relating to him that it held. In response, the CAI sent him a number of documents, but refused to send him his exam script on the ground that it did not contain personal data within the meaning of the 1995 Data Protection Directive.

He then contacted the DPC to challenge the reason given for the refusal to disclose his examination script. It replied to him and stated that "exam scripts do not generally fall to be considered [for data protection purposes] … because this material would not generally constitute personal data". He did not accept this decision and after more exchanges submitted a formal complaint. The DPC informed him it could not identify a contravention of data protection legislation and consequently would not investigate.

Thus, he brought an action against that decision in court. The Circuit Court, High Court and Court of Appeal all dismissed his claims. However, the Supreme Court allowed an appeal against the judgment of the Court of Appeal, and held that the action brought by Mr Nowak against the decision of the Data Protection Commissioner was admissible.

The Supreme Court was nonetheless uncertain whether an examination script can constitute personal data within the meaning of Directive 95/46, so referred the following questions to the CJEU for a preliminary ruling:

1. Is information recorded in/as answers given by a candidate during a professional examination capable of being personal data, within the meaning of Directive 95/46?
2. If the answer to Question 1 is that all or some of such information may be personal data within the meaning of the Directive, what factors are relevant in determining whether in any given case such script is personal data, and what weight should be given to such factors?

Holding

In its judgment, the CJEU assessed whether "the written answers provided by a candidate at a professional examination and any comments made by an examiner with respect to those answers constitute information relating to that candidate, within the meaning of Article 2(a) of Directive 95/46". From the start of its analysis it emphasised that the scope of the Directive is "very wide and the personal data covered by that directive is varied".

First, it evaluated whether the information on his exam script constituted information relating to the claimant. It stated that the "content of those answers reflects the extent of the candidate’s knowledge and competence in a given field", that the answers are collected to evaluate his professional abilities, that "the use of that information (...) is liable to have an effect on his or her rights and interests, in that it may determine or influence, for example, the chance of entering the profession aspired to or of obtaining the post sought", and that "the aim of any examination is to determine and establish the individual performance of a specific person".

Thus, it held that comments of an examiner with respect to the candidate’s answers and the answers submitted by the candidate at the examination constitute information relating to that candidate.

It then considered whether this information constitutes personal data. It first explained that if it did not, "that would have the effect of entirely excluding that information from the obligation to comply not only with the principles and safeguards that must be observed in the area of personal data protection, and, in particular, the principles relating to the quality of such data and the criteria for making data processing legitimate, established in Articles 6 and 7 of Directive 95/46, but also with the rights of access, rectification and objection of the data subject".

Then, it considered different scenarios where these rights should exist for candidates who seek access to their answers and comments, and came to the conclusion that: "Article 2(a) of Directive 95/46 must be interpreted as meaning that, in circumstances such as those of the main proceedings, the written answers submitted by a candidate at a professional examination and any comments made by an examiner with respect to those answers constitute personal data, within the meaning of that provision".

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