TRL - 7159/08.7TBCSC-A.L1-7

TRL - 7159/08.7TBCSC-A.L1-7

Court:	TR Lisboa (Portugal)
Jurisdiction:	Portugal
Relevant Law:	Article 38(5) GDPR § 10 Lei 58/2019 § 8 Lei 58/2019
Decided:	26.06.2022
Published:	21.06.2022
Parties:	A (...Bebidas S.A) Via Verde Portugal – Gestão de Sistemas Electrónicos de Cobrança, SA
National Case Number/Name:	7159/08.7TBCSC-A.L1-7
European Case Law Identifier:
Appeal from:
Appeal to:	Unknown
Original Language(s):	Portuguese
Original Source:	Acordão do Tribunal da Relação de Lisboa (in Portuguese)
Initial Contributor:	MariaMM

The Lisbon Appeal Court held that in an attachment order in which the pursuing creditor needed to know the locations of two cars, the controller (entity responsible for the activity of collecting toll fees through an electronic system) was not obliged to lift professional secrecy in order to give information about the cars.

English Summary

Facts

“A” brought an executive action against “B”. After this, an enforcement proceeding was started with an order to impound two vehicles. However, it became clear that it was impossible to impound the vehicles. After this, the pursuing creditor requested the controller to provide information about the journeys of these vehicles in question since a specific date.

The controller is an entity responsible for collecting toll fees on highways with the use of an electronic system, thus monitoring the passage of vehicles at certain points installed on the road for this purpose. The controller is therefore able to register traffic and collects personal data from its clients. The controller is also responsible for the treatment of such data.

The controller stated that it couldn't supply information concerning toll records (date, time and place) because this was part of the the concept of protection of privacy. These toll records could only be shared with the consent of data subjects, the owners of the cars. After this, the pursuing creditor requested the lifting of professional confidentiality from the controller so the record of the journeys of the cars could be disclosed, whic could result in the cars being seized.

Holding

The Court held that those responsible for processing personal data, as well as those who, in the course of their duties, have knowledge of the personal data processed, are bound by professional secrecy, even after the end of their functions (Article 10 of Lei 58/2019), which directly mentions Article 38(5) GDPR. Lei 58/2019 is a national law for GDPR implementation). This duty of secrecy must give way to the duty to provide legally required information, particularly to the judicial authorities, and to the duties of the National Commission for Data Protection (Article 8 of Lei 58/2019).

The Court held that the records collected by the controller are personal data which fall under the concept of protection of privacy and for which there is an obligation of confidentiality for the controller. The court considered the possibility of creating "individual driver profiles" with these records and held that this information is likely to limit the freedom of movement of clients of the controller and that this information could involve risks of intrusion in private life if strict mechanisms for processing, storage and access to the information are not established.

The Court stated that this case presented a conflict between the duty of professional secrecy and the duty to cooperate with the administration of justice, which should be resolved through a judgment of proportionality through a judgment of weighting and coordination between these duties.

In a balancing test of the interests at stake, the Court concluded that making the information available about the controller's clients and their private matters was not proportional in relation to the scope of the availibillity of the information.. The Court further stated a failure to obtain the information didn't jeopardize the applicant's interest in locating the vehicles. The success or failure of seizing the vehicles would not depend on the lifting of the profesional secrecy of the controller. The Court held that is was therefore not appropriate to lift the professional secrecy of the controller.

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English Machine Translation of the Decision

The decision below is a machine translation of the Portuguese original. Please refer to the Portuguese original for more details.

Process:
7159/08.7TBCSC-A.L1-7
Rapporteur: ANA RODRIGUES DA SILVA
Descriptors: DUTY OF CONFIDENTIALITY
DUTY OF COLLABORATION TO DISCOVER THE TRUTH
AUTOMOTIVE TRAFFIC RECORDS
GREEN WAY
DUTY OF CONFIDENTIALITY

Document No.: RL
Date of Agreement: 2022-06-21
Vote: UNANIMITY
Full Text: S
Partial Text: N

Procedural Means: INCIDENTAL LEVYING OF CONFIDENTIALITY
Decision: UNFOUNDED

Summary: 1.–The records relating to car traffic, specifying the date and time when a particular car passed through the points where toll fees were collected through an electronic system, are personal data, integrating the concept of privacy and under which there is a duty of secrecy;

2.–The lifting of this professional secrecy, requiring the provision of information capable of affecting the privacy of the clients of the entity responsible for the activity of collecting these toll fees, based on the need for such elements to carry out the seizure of vehicles in the executive process is disproportionate to the intended objectives, which can be obtained through other means.

Decision Partial Text:

Decision Full Text: Agree in the 7th Section of the Lisbon Court of Appeal:


I.-REPORT


1.–A (currently …Bebidas, SA) brought the present enforcement action against B.
2.–As part of the attachment proceedings carried out, the attachment of the passenger car, Jaguar brand, Daimler model, with registration 59-==-UT and the Renault passenger car, Kangoo model, was ordered. with registration 68-==-LJ;
3.–By application of 01/10/2022, and following the impossibility of apprehending the vehicles, the applicant requested the notification of Via Verde Portugal – Gestão de Sistemas Electrónicos de Cobrança, SA to inform the present records of the trips made by the vehicles concerned since a given date.
4.– After the notification was ordered, Via Verde Portugal - Gestão de Sistemas Electrónicos de Cobrança, SA indicated that “it cannot provide information regarding toll records (date, time and place), as it integrates the concept of privacy reservation which can only be sent, with the consent of the data subject”.
5.–The petitioner requested the lifting of professional secrecy to Via Verde, SA so that it could indicate “the registration of the trips, in a certain period of time, of two vehicles, with a view to their seizure / judicial attachment”.
6.– An order was issued determining the initiation of this incident for knowledge of the lifting of secrecy.

II.–MATTERS TO BE DECIDED
The issue to be decided in the present incident is whether to grant a waiver of professional secrecy.

III. – GROUNDS OF FACT
The facts of interest for the decision of the present incident are those set out in the above report.

IV.– GROUNDS OF LAW
The issue at hand in the case file is linked to the possibility of lifting the professional secrecy that applies to Via Verde Portugal in relation to the registration of trips, in a certain period of time, of a certain vehicle, with a view to its judicial seizure.

Via Verde Portugal understood that it could not provide information regarding the toll records (date, time and place) requested in an executive process, since this matter integrates the concept of privacy reservation, which can only be sent, with the consent of the data subject.

It bases its refusal on the duties of secrecy and confidentiality to which it is bound, under the terms of Regulation (EU) 2016/679, of the European Parliament and of the Council of 27 April 2016 (“GDPR”).

It is recalled that Law 58/2019, of 8 August, which ensures the implementation, in the national legal system, of Regulation (EU) 2016/679 of the Parliament and of the Council, of 27 April 2016, on the protection of individuals with regard to the processing of personal data and the free movement of such data, transposed the aforementioned Regulation into our legal system.

Under the terms of this Regulation, the protection of individuals in relation to the processing of personal data is a fundamental right, which can only be waived in exceptional situations.

For this reason, those responsible for the processing of personal data, as well as persons who, in the exercise of their functions, have knowledge of the personal data processed, are bound by professional secrecy, even after the end of their functions (article 10 of the Law 58/2019, of 8 August).

Naturally, this duty of secrecy has to give way to the duty to provide mandatory information under the legal terms, namely to the judicial authorities, and in view of the attributions of the National Data Protection Commission (CNPD), as follows from art. 8 of Law 58/2019.

On the other hand, pursuant to art. 417, no. 1 and 3 of the CPC, all persons have the duty to collaborate in the discovery of the truth, unless such collaboration entails a violation of professional secrecy.

That is, along with the need to ensure that justice is carried out, this precept provides for ways of respecting the particular interests of citizens, as well as the various professional and similar secrecy legally enshrined.

As António Santos Abrantes Geraldes, Paulo Pimenta and Luís Filipe Pires de Sousa explain, in Annotated Code of Civil Procedure, Vol. I, General Part and Declaration Process, Coimbra, 2018, p. 491, the duty of collaboration may cede “when the collaboration implies intrusion into private or family life, at home, in correspondence or in telecommunications, cases in which the interests in question override the requested collaboration, the law protecting fundamental rights that express values considered intangible. Another reason for refusal is when compliance with the collaboration entails a violation of professional or public official secrecy”.

If a request for an excuse is presented on this basis, the competent incident must be brought, under the terms of the procedure regulated in the CPP, with the adaptations imposed by the nature of the interests in question.

It follows from the subsidiary application of article 135 of the CPP that it is up to the judge of the case where the excuse is invoked to assess its legitimacy, proceeding in accordance with that assessment.

On the other hand, the waiver of secrecy can still be ordered by the higher court, whenever this proves to be justified, namely when this waiver proves to be essential for the establishment of the facts.

The decision on any incident of this nature passes, then, by determining which interest should prevail: the duty of professional secrecy or the duty of collaboration with the administration of justice, weighing the interests at stake in accordance with the principle of proportionality contained in the art. 18, nº 2 of the Constitution of the Portuguese Republic.

Pursuant to this precept, restrictions on rights, freedoms and guarantees must be limited to what is necessary to safeguard other constitutionally protected rights or interests, and it is worth mentioning that art. 335, nº 1 of the CC determines that, in the event of a “collision of equal rights or of the same kind, the holders must cede to the extent necessary so that all equally produce their effect, without greater detriment to any of them”.

With this framework in mind, let us analyze the sub judice situation.

As already mentioned, the applicant intends that Via Verde Portugal indicate the journeys made by the vehicles concerned in the case file during a certain period of time so that their seizure can be carried out.

It is important not to forget that Via Verde Portugal is responsible for the activity of collecting toll fees through an electronic system, which is why it monitors the passage of vehicles at certain collection points installed on the road for this purpose, recording this car traffic . In other words, in this activity it collects personal data from its customers, being the entity responsible for the processing of this data.

However, these records, specifying the date and time when a particular motor vehicle passed one of these collection points, are personal data, integrating the concept of privacy reserve and under which there is a duty of secrecy.

As mentioned in Ac. TRP of 2015-10-28, proc. 1359/15.0T8MAI-A.P1, rapporteur Anabela Dias da Silva, dealing with a situation identical to that of the records, and with which one fully agrees, “... crossing time - when related to the place of the transaction - may raise some questions in relation to privacy or the possibility of creating “individual driver profiles”. And equating this fact from the point of view of data protection in the context of “personal freedom, movement and movement”, it is unquestionable that the registration of this information and if strict mechanisms of treatment, conservation and access to information are not established - is liable to limit freedom of movement and involve risks of intrusion into private life”.

And, further on, it is explained that “Doctrine has admitted that the right to reserve can be limited to the performance of activities aimed at the “fulfillment of a legitimate interest”, which, clearly, assumes particular relevance when it presents itself with characteristics “general interest” or “public interest”.

The Constitutional Court's own jurisprudence has understood that, raising doubts about the validity of evidence when private interests are settled and that evidence contains information that violates the intimacy of private life, the violation of the provisions of article 26 may be at stake. of C.R.Portuguesa, the right of reservation must prevail, cf. Paulo Mota Pinto, in “The right to reserve on the intimacy of private life”, Bulletin of the Faculty of Law of Coimbra, 1993, Volume LXIX, p. 565. Since the constitutional guarantee of fundamental rights - such as the privacy of private life and human dignity - will work whenever the interests protected in it do not overlap with other interests that are worthy of greater protection, that is, bearing in mind a criterion of proportionality”.

It is concluded, therefore, that there is a conflict between the duty of professional secrecy and the duty of collaboration with the administration of justice, which must be resolved through a judgment of proportionality or, as it is said, in the aforementioned paragraph, through a judgment of balance and coordination between these duties.

However, considering the interests at stake, it is understood that the provision of information regarding matters relating to the private reservation of Via Verde Portugal customers is not proportionate to the scope of this provision.

In fact, it is important not to forget that the provision of the information sought aims at the seizure of vehicles, an objective that, naturally, does not depend on that information. In other words, the breach of professional secrecy raised is neither the only nor the most appropriate means to obtain this apprehension.

As the following paragraph concludes, imposing such an obligation would “compromise fundamental freedoms and rights in favor of private economic interests, which can be legitimately achieved by other means”.

Also in the TRL decision of 2011-02-11, proc. 4987/07.4TVLSB-A.L1-1, rapporteur Afonso Henrique, and with an identical object to these records, it can be read that “The collision between the duty to keep secrecy and the underlying interest, must result from a judgment of weight and of coordination between them, of proportionality, vis-à-vis the private interest and the public interest in the administration of justice.

However, in this case, the failure to ascertain the intended information does not jeopardize the applicant's interest in locating the vehicle to be learned.

The success or failure of the action will not depend on the lifting of the required professional secrecy.

It is, therefore, not curial to “oblige” “Via Verde” to jeopardize the trust that its customer has in itself, which means that it does not provide their personal data to others, in accordance with the provisions of article 17. nº1 of Law 67/98, of 26-10 and in determination nº 23/95, of the National Data Protection Commission (CNPD) that legalized the file regarding the “Management of Customers/Adherents to the System of Collection of Toll Fees Via Green".

This is the solution to be adopted in the present case.

Thus, Via Verde Portugal's refusal to provide the information required within the scope of the execution that constitutes the main proceedings is considered legitimate and, consequently, the lifting of professional secrecy is not authorized.
The costs due are borne by the applicant, cf. art. 527 of the CPC.

V.-DECISION

In view of the above, the judges of this 7th Chamber of the Lisbon Court of Appeal agree not to authorize the lifting of professional secrecy in relation to the information requested by the applicant.
Costs by the applicant.
*


Lisbon, June 21, 2022



Ana Rodrigues da Silva
Micaela Sousa
Cristina Silva Maximiano