Tribunal da Relação de Coimbra - 4354/19.7T8CBR-A.C2

Tribunal da Relação de Coimbra - 4354/19.7T8CBR-A.C2
Court:	TR Coimbra (Portugal)
Jurisdiction:	Portugal
Relevant Law:	Article 4(1) GDPR Article 4(2) GDPR Article 9(1) GDPR Article 9(2)(f) GDPR Article 417(1) of the (New) Civil Procedural Code Article 59 of the Constitution of the Portuguese Republic
Decided:	26.06.2020
Published:
Parties:
National Case Number/Name:	4354/19.7T8CBR-A.C2
European Case Law Identifier:
Appeal from:	TC Coimbra (Portugal)
Appeal to:	Not appealed
Original Language(s):	Portuguese
Original Source:	Acórdão do Tribunal da Relação de Coimbra (in Portuguese)
Initial Contributor:	Jose Belo

A balance of fundamental rights case where a data subject (employee) requests personal data of other data subjects (employees) from the controller (employer) to defend her/his constitutional right to equal pay for equal work.

Claiming a violation of the universal principle of equality of "for equal, work equal pay", protected by the Portuguese Constitution (Article 59), a plaintiff, seeking higher remuneration, requested access to salary receipts of other workers from the employer, to prove that his constitutional rights were being violated.

After the request, made to the lower Court, to obtain the personal data from other data subjects that are employees of the controller and not part of the litigation, the Court decided against the sharing of personal data for the purposes of civil litigation, claiming the right to privacy of the other data subjects. The Attorney General agreed with the decision.

The data subject appealed this particular decision.

The Court of Appeal considered that, even though the other data subjects are not part of the litigation, it is no less true that all people, whether or not they are parties to the cause, have a duty to collaborate to the discovery the truth (Article 417(1) of the (New) Civil Procedural Code).

The Court of Appeal decided that the controller must provide their personal data, so that the Courts are able to understand and decide upon the data subject's initial claim that the controller is not paying the same to its employees for equal work.

Taking into consideration the fundamental right to privacy of those data subjects that are not part of the litigation, the Court of Appeal decided that the controller provide the personal data requested by the data subject, but to apply data minimisation techniques that only allow the Court to decide, removing any other personal data from the submitted salary receipts of other data subjects.

As such, the Court ordered that any reference to any other elements that are not related to the salary (i.e. union dues, insurance and alimony payments and absences from work) and that may be included in the receipts, should be removed.

The Court of Appeal, thus, considered the appeal well founded.

English Summary

Facts

The plaintiff considers that he is eligible to be qualified as a 3rd Degree Administrator and 2nd Class Administrator, as verified under the terms of Law-Decree 101/80, of 8 May, namely because the defendant is remunerating other workers with a higher remuneration when the work provided by them is equal in nature, quality and quantity to that provided by the author, and the constitutional and universal principle of equality of “for equal work, equal wages” (Article 59 of the Portuguese Constitution) is being violated.

Dispute

After the pleadings were closed, the Plaintiff requested from the Court access to personal data of other workers. The request was issued, of which the following stands out:

“(…) The Plaintiff requires (...) the Defendant be notified to join the Work Contracts of other workers that he identifies, as well as the respective salary receipts."

Now, in the case of people who are not even part of the present case and having in mind the Data Protection Law, the claim was rejected by the lower Court.

As for the joining of salary receipts of workers who are not part of these records, and in view of the Data Protection Law, the lower Court ordered that those receipts be removed and returned.

Not complying with what was decided by the Tribunal Judicial de Coimbra (lower Court), the plaintiff appealed to the Tribunal da Relação de Coimbra (Coimbra Court of Appeal).

The Portuguese Deputy Attorney General requested that the appeal be dismissed.

Considering the conclusions of the allegations that, as is known, the Court of Appeal had to decide whether:

1. The order under appeal is null and void.
2. The addition of employment contracts and salary receipts to other workers who are not part of the process violates data protection laws.

Holding

The content or contents of the salary receipts is framed in the definition of personal data contained in Article 4(1) of the GDPR because they contain “information relating to an identified or identifiable natural person (“data subject”)…” and its treatment (Article 4(2) of the GDPR) is only lawful if, as far as the case is concerned, “it is necessary for the purpose of the legitimate interests pursued by the controller or by third parties, except if the holder's fundamental interests or rights and freedoms prevail that require the protection of personal data, especially if the holder is a child”.

The processing of personal data that reveals racial or ethnic origin, political opinions, religious or philosophical beliefs, or union affiliation , as well as the treatment of genetic data, biometric data to uniquely identify a person, is prohibited, data relating to health or data relating to a person's sexual life or sexual orientation, and this prohibition does not apply “if treatment is necessary to declare, exercise or defend a right in a judicial proceeding or whenever the courts act in the exercise of their jurisdictional function”- Article 9(1) and (2)(f) of the GDPR.

If it is true that, in this case, these workers are not parties to the lawsuit, it is no less true that all people, whether or not they are parties to the cause, have a duty to collaborate to discover the truth, namely, providing whatever is required - Article 417(1) of the (New) Civil Procedural Code, in which case, the reasons for refusal referred to in paragraph 3 of the aforementioned rule are not verified.

If, in order to achieve the intended purpose (to know if there is a violation of the aforementioned constitutional principle), it is necessary to add the salary receipts in order to be able to prove the amount of wages earned by other workers, it is no less certain that this combination may entail an intrusion into the private lives of these workers as the receipts may contain other information such as, for example, union dues, insurance and alimony payments and absences from work, whose knowledge is not essential or indispensable for be able to decide on the alleged violation of the constitutional principle of “for equal work equal pay”

Thus, if the joining of the salary receipts is adequate, or necessary, for the exercise by the author of a right in a judicial process, that is, to prove the amount of the salaries in order to be able to conclude for the violation or not from the said principle, it cannot be forgotten that such a merger, in the terms referred to, may result in a violation of the reserve of private life, all depending on the content of such receipts.

For this reason, considering the conflicting rights that it is urgent to safeguard, bearing in mind the balance criterion that must preside over the analysis of this type of situations, within the legal framework in force, it is decided that the salary receipts must be filed together provided that only the amount of the salary is included, including all its remuneration components, omitting the reference to any other elements that, in addition to the amount of the remuneration, may be included in them.

Terms in which it is decided to judge the appeal well founded, according to what the defendant must be notified to proceed with the aggregation of the receipts of salary of the data subjects, under the terms and with the limitations contained above.

Comment

The Court of Appeal considered that, even though the other data subjects are not part of the litigation, the controller must provide their personal data, so that the Courts are able to understand the truth and decide upon the data subject's initial claim that the controller is not paying the same to its employees for equal work, violating his/her fundamental right to "equal work, equal pay", enshrined in Article 59 the Portuguese Constitution.

Taking into consideration the fundamental right to privacy of those data subjects that are not part of the litigation but who are bound to the discovery of the truth, under Article 417(1) of the (New) Civil Procedural Code, the Court of Appeal decided that the controller must provide the personal data requested by the data subject, but to apply data minimisation techniques to the salary receipts so that the the Court is able to decide on the matter.

This meant removing any other personal data from the submitted salary receipts of other data subjects that would violate their fundamental right to privacy, namely, personal data that are protected by Article 9(1) and 9(2)(f) of the GDPR (i.e. union dues, insurance and alimony payments and absences from work).

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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.

Appeal 4354 / 19.7T8CBR-A.C1

Rapporteur: Felizardo Paiva.

Adjunct: Jorge Loureiro.

Paula Roberto.

They agreed, in a conference, at the Court of Appeal of Coimbra:

I - P ... , resident on the street ..., instituted the present declaratory action of conviction, with a common process, arising from an individual labor contract, against INSTITUTO ..., EPE , with headquarters at Avenida ..., Coimbra asking that he be sentenced to;

a) Classify A. as a 3rd Degree Administrator and 2nd Class Administrator in the terms provided for in Decree-Law no. 101/80, of 8 May;

b) Recognize that the Author has the right to receive the salary provided for in letter E, corresponding to a 3rd Degree Administrator and to the 2nd class Administrator of Decree-Law no. 101/80, of 8 May, which is currently € 3,298.46 (three thousand two hundred and ninety-eight euros and forty-six cents), of which € 2,987.25 is for basic remuneration and € 311.21 for representation expenses;

c) Pay A. the missing amounts, retroactive to remuneration, vacations and holiday allowances for the period between 1 June 2013 and 31 May 2019, totaling € 41,100.36 (forty-one thousand and one hundred euros and thirty-six cents), plus interest on arrears past due and due until full payment.

He claimed very briefly that the requirements that allow him to qualify as a 3rd Degree Administrator and 2nd Class Administrator position are verified under the terms of Decree-Law no. 101/80, of 8 May, namely because the author is remunerating other workers with a higher remuneration when the work provided by them is equal in nature, quality and quantity to that provided by the author, and the constitutional and universal principle of equality of “ for equal work equal wages ” is being violated. in article 59 of the CRP.

The defendant contested, claiming, in summary, that there was no violation of the constitutional principle invoked by the plaintiff and that the formal and substantial requirements for carrying out the requested contractual amendment are not met, as R. would only be obliged to do so in case A. had actually entered the career and had submitted to the rules of promotion / career progression, which and this never happened.

In addition, even if A. had entered the hospital administrator career, still R. would not have authorization for the required contractual change, as this implies a salary increase that R. is prohibited from making , by virtue of the prohibition on remunerative valuations, which covers EPEs that, due to the assistance intervention in Portugal, were considered reclassified companies, that is, with restricted financial autonomy.


+

After the pleadings were closed, a sanitation order was issued, of which the following stands out:
“(…) The Plaintiff requires, for proof of the alleged in articles 18 to 23 of its pleading, the Defendant be notified to join the Work Contracts of other workers that he identifies, as well as the respective salary receipts.

Now, in the case of people who are not even part of the present case and having in mind the Data Protection Law, this claim is rejected.

(…)

As for the joining of salary receipts of workers who are not part of these records, and in view of the already decided above, (Data Protection Law) unravel and delivered to the presenter ”

II - Not complying with what was decided, the author appealed alleging and concluding:

...

There were no objections.

In this List, the former PGA pronounced itself in the sense of the dismissal of the appeal.

IV - Considering the conclusions of the allegations that, as is known, delimit the object of the appeal, it is necessary to decide whether:

1. The order under appeal is null and void.

2. The addition of employment contracts and salary receipts to other workers who are not part of the process violates the Data Protection Law.

Order nullity :

The sentence nullity regime provided for in article 615 of the CPC is applicable to orders - paragraph 3 of article 613 of the CPC.

Regarding the defendant nullity, the court a quo [1] ruled as follows: "the author, in his appeal statement, moreover, let us reason together the nullity of insufficient reasoning of the intended order, for breach of article 156 of the CPC, it seems to us that it would be intended to refer to article 154, since the matter that states “ the decisions rendered on any disputed request or on any doubt raised in the process are always justified.”, Is found in the latter and not in the other. Now, with due respect for the contrary opinion, and without removing the reason that will assist the appellant, we understand that, at the time, the request was not controversial, so much so that, the Defendant, without anything having been determined (since we had not even considered the Author's request) and without even raising any opposition, he joined, as soon as he deduced the contestation, the salary receipts that were ordered Data Protection and as a duty, which we understand "by trade" to do so.

Nevertheless, the appellant is right, since the simple reference to the Data Protection Law, despite the fact that there is a lot of public knowledge and, most of all, of the illustrious cause who subscribes to the appeal under consideration, of the matter that such Law contains, I concede, that it is not sufficient reasoning, its simple allusion, constituting, such non-observance, of the due and necessary reasoning, the alleged nullity, under the terms of the provisions of article 615, paragraph 1, point b) of the CPC, which will thus be repaired.

The aforementioned article states that: “The sentence is void when, do not specify the factual and legal grounds that justify the decision” Since it is a mere order, we also comply with the provisions of article 613, paragraph 3 of the same legal diploma which provides that "The provisions of the preceding paragraphs (... supply nullities ..), as well as the subsequent articles, apply, with the necessary adaptations, to orders".

The matter in question and as already referred to in the order in question, concerns people who are not even parties to the present case and, on the other hand, are their personal data, and the reference, in the order in question, to the Data Protection Law, wanted to mean, from the outset and beyond, that the documents whose joining was requested, reported to strictly personal and third party data, otherwise, they are protected in the aforementioned Law and the respective General Data Protection Regulation, as follows from the provisions, already, in article 2 of the aforementioned Law, under the heading - scope - which provides that: “1 - This law applies to the processing of personal data carried out in the national territory, regardless of the public or private nature of the controller or the subcontractor, even if the processing of personal data is carried out in compliance with legal obligations or within the scope of pursuit of public interest missions, applying all the exclusions provided for in article 2 of the GDPR. ”, Resulting from its article 3 under the heading“ National control authority ”that“The National Data Protection Commission (CNPD) is the national supervisory authority for the purposes of the GDPR and the present law. ” It is true that such protection is not absolute, but it is less certain that access to personal data has rules, the rules of which are found in the General Data Protection Regulation.

Thus and although it is certain that the General Data Protection Regulation and in particular in the article that the applicant cites - article 6, paragraph f) - contains some exceptions, or, better saying, it has lawful access to such data, such, as we believe , this is not the case at hand, but let us see: Paragraph 1, of the aforementioned normative, provides that : “1 - Treatment is only lawful if and insofar as at least one of the following situations occurs: (…) f) The processing is necessary for the purpose of the legitimate interests pursued by the controller or by third parties, unless the holder's fundamental interests or rights and freedoms that require the protection of personal data prevail, especially if the holder is a child (…)”(Bold and underlined ours), this exception, which we believe to be the case, since, between the allegedly legitimate interest of a third party, in this case the Author, in having access to third-party salary receipts and their interest in them. not to reveal, and / or, their rights, freedoms and guarantees, constitutionally protected, namely the right to inviolability of their private life, the latter must prevail, all the more so as the Author's right to a certain salary and / or category professional, can be reached using other elements, other than the salary receipts of third parties, whose, contain in addition to the amount of the salary, or may contain, other information such as payment of insurance, attachment of salaries, pension of food, absences, etc…, everything,information that fits the concept of the worker's private life, also constitutionally protected - article 35 of the CRP.

Regarding the subject matter - Access to salary receipts - see, among others, Deliberation nº 923/2016 of 5/31/2016, of the National Data Protection Commission, in the scope of which it can be read that “ access the information contained in the salary receipt, has an excessive impact on private life (…) and violates the provisions of paragraph 5 c) of the LPDP ”.

In view of the aforementioned regulations, the order referred to is repaired in the following terms: The Plaintiff requires, for proof of the alleged in articles 18 to 23 of its pleading, notify the Defendant to join the Work Contracts of other workers that he identifies, as well as the respective salary receipts. Now, in the case of people who are not even parties to the present proceedings and bearing in mind the Data Protection Law and the respective General Data Protection Regulations, in particular the aforementioned regulations and with the aforementioned reasoning, this claim is rejected ” .

In view of this “ reparation ”, the question of nullity of the order, as it does not specify the legal grounds that justify the decision (al. B) of paragraph 1 of article 615 of the CPC), has been overcome.

In any event, even if this “ repair ” was not carried out, the order would never be null and void based on the provisions of the aforementioned regulations.

Indeed, with regard to the lack of specification of the factual and legal grounds that justify the decision referred to in subparagraph b), Alberto dos Reis teaches us: “We must carefully distinguish the absolute lack of motivation from the deficient motivation, mediocre or wrong. What the law considers null is the absolute lack of motivation ; the insufficiency or mediocrity of the motivation is different, affects the doctrinal value of the sentence, subject it to the risk of being revoked or altered on appeal, but does not produce nullity.

An absolute lack of motivation must mean the total absence of legal and factual grounds . If the sentence specifies the grounds of law, but does not specify the grounds of fact, or vice versa, nullity is verified (…) ”- Annotated Civil Procedure Code, Vol. V, pag.140.

The same understanding has been advocated by more recent doctrine.

Lebre de Freitas mentions , in Civil Procedure Code, pag.297 that “there is nullity when there is absolutely no indication of the factual grounds of the decision or the indication of the legal grounds of the decision, not constituting a mere deficiency of reasoning”.

In the same sense, says Counselor Rodrigues Bastos, that “the lack of motivation referred to in subparagraph b) of paragraph 1 is the total omission of the factual or legal grounds on which the decision is based; a specification of this matter that is only incomplete or defective does not affect the legal value of the sentence ” (cf." Notes to the Code of Civil Procedure ", III, p.194).

At the jurisprudential level, for a long time, the higher courts, peacefully, have considered that the nullity provided for in paragraph b) of paragraph 1 of article 615 of the Code of Civil Procedure, only occurs when there is an absolute lack of grounds and not when the reasoning it is deficient, wrong or incomplete (cf. Judgment of the Supreme Court of 8/4/1975-BMJ 246º, p.131; Judgment of the Relação de Lisboa of 10/3/1980-BMJ 300º, P.438; Judgment of the Porto List of 8/7/1082-BMJ 319º, p.343; and, more recently, the Coimbra Appeal Judgment of 6/11/2012, P. 983 / 11.5TBPBL.C1 and the Évora Appeal Judgment, of 20/12/2012, P. 5313 / 11.3YYLSB-A.E1, both available at www.dgsi.pt. ).

Now, the order that did not admit the joining of documents and ordered the unraveling of others was manifestly deficient with regard to the specification of the fundamentals of law as the court a quo recognizes in the order of “ reparation ”.

However, it does not suffer from an absolute lack of reasoning, so, as has been said, it could never have been considered null, which is now decided.

Violation of the GDPR :

The matter must be analyzed in the framework of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of individuals with regard to the processing of personal data and on the free movement of such data and that repealed Directive 95/46 / EC (General Regulation on Data Protection), hereinafter referred to only as Regulation.

First of all, it should be said that the content or content of the salary receipts falls within the definition of personal data contained in paragraph 1 of article 4 of the Regulation because they contain “ information relating to an identified or identifiable natural person (“ data subject ” ) … ”And that its treatment (paragraph 2 of article 4 of the Regulation) is only lawful if, as far as the case is concerned,“ it is necessary for the purpose of the legitimate interests pursued by the controller or by third parties, except if the interests or fundamental rights and freedoms of the data subject requiring the protection of personal data, especially if the data subject is a child ” .

On the other hand, the processing of personal data that reveals racial or ethnic origin, political opinions, religious or philosophical beliefs, or union affiliation , as well as the processing of genetic data, biometric data to identify a person in a way , is prohibited. unambiguous, health-related data or data relating to a person's sexual life or sexual orientation, and this prohibition does not apply “ if treatment is necessary to declare, exercise or defend a right in a judicial proceeding or whenever courts act in the exercise of their jurisdictional function ”- paragraphs 1 and 2 al. f) of article 9 of the Regulation.
The plaintiff, as a third party [2], intends that through the court the processing of personal data is carried out with a view to achieving a legitimate interest, which may be through that data demonstrating that the employer is violating the constitutional principle enshrined in paragraph a) of 1 of article 59 of the CRP, according to which everyone has the right to remuneration for work, according to the quantity, nature and quality, in order to ensure that equal work corresponds to equal pay.

In order to achieve this aim, it is essential to know the remuneration value of other workers who, according to the plaintiff, and in comparison with him, perform functions of the same nature, quantity and quality in the defendant.

And, in this understanding, it is important to know what the amount of other workers' wages is in the respective salary receipts.

If it is true that, in this case, these workers are not parties to the process, it is no less true that all people, whether or not they are parties to the cause, have a duty to collaborate to discover the truth, namely, providing what is requested - paragraph 1 of article 417 of the CPC, in which case, the causes of refusal referred to in paragraph 3 of the aforementioned precept are not verified.

If, in order to achieve the intended purpose (to know if there is a violation of the aforementioned constitutional principle), it is necessary to add the salary receipts in order to be able to prove the amount of wages earned by other workers, it is no less certain that this combination may result in meddling in the private life [3] of these workers insofar as the receipts may contain other information such as, for example, union dues [4] , insurance and maintenance payments and absences from work, whose knowledge is not essential or indispensable in order to be able to decide on the alleged violation of the constitutional principle of “ for equal work equal pay ”

Thus, if the aggregation of the salary receipts is adequate, or necessary, for the author to exercise a right in a judicial process, that is, to prove the amount of the salaries in order to be able to conclude for the violation or not of the said principle, it cannot be forgotten that this combination in the referred terms may result in a violation of the reserve of private life, all depending on the content of such receipts.

Therefore, considering the conflicting rights that it is urgent to safeguard, bearing in mind the balance criterion that should govern the analysis of this type of situations, in the legal framework in force, it is decided that the salary receipts must be filed together since only the amount of the salary is included, including all of its remuneration components, omitting the reference to any other elements that, in addition to the amount of the remuneration, may be included therein .

VI - Terms in which it is decided to judge the appeal well founded, according to what the defendant must be notified to proceed with the aggregation of the receipts of salary of ..., under the terms and with the limitations contained in the present judgment.

Costs borne by the defendant.


Coimbra, June 26, 2020
Joaquim José Felizardo Paiva
Jorge Manuel da Silva Loureiro
Paula Maria Mendes Ferreira Roberto



[1] After discharge of the process ordered by this List. 

[2] “Third Party” means the natural or legal person, the public authority, the service or body other than the data subject, the controller, the subcontractor and persons who, under the direct authority of the controller or subcontractor, are authorized to process personal data ”. 

[3] Constitutionally protected (article 35, paragraphs 3 and 4 of CRP). According to GOMES CANOTILHO and VITAL MOREIRA,«the right to reserve the privacy of privacy and family is analyzed mainly in two minor rights: (a) the right to prevent the access of strangers to information about private and family life and (b) the right to nobody to divulge the information they have about private and family life of another person ”(Constitution of the Annotated Portuguese Republic, Volume I, 4th revised edition, Coimbra Editora, 2007, p. 467). It has been understood that“ the reserve of private life that the law protects includes the acts that must be removed from public curiosity, for natural reasons of protection and squeamishness, such as feelings, affections, customs of life and vulgar daily practices, the difficulties inherent in the difficult economic situation and the renunciations that it implies and sometimes even the particular way of being, the personal taste for simplicity that contrasts with a certain economic or social position;the feelings, actions and abstentions that are part of a certain way of being and being and that are a condition for the realization and development of the personality.
It will be treated, in a possible delimitation or with a simple reference of criteria, of the sectors or events of the life of each individual in relation to which it is legitimate to suppose that the person manifests a demand for discretion as an expression of a right to protection ”(cf. Opinion No. 121/80 of the Consultative Council of the Attorney General's Office, published in the Ministry of Justice Bulletin, No. 309, pages 121, and Diário da República, II Series, of February 25, 1982, and more recently, Opinion no. 95/2003, of that Advisory Council, in Diário da República, II Series, no. 54, of 4 March 2004).

[4] From which it will be inferred what the union membership of the respective worker is.