On 9 March 2017 the ECJ (Court of Justice of the European Union)
handed down its judgement in a preliminary ruling referred to it by
the Corte suprema di cassazione (Court of Cassation, Italy).
Mr Manni had brought an action against the Lecce Chamber of
Commerce as he believed that information available on the company
register relating to him previously being the administrator of a
company that went bankrupt in 1992 and was wound up in 2005,
affected the sales of properties in a complex built by another
company of which he was a director.
Initially, the Tribunale di Lecce (Court of Lecce, Italy)
ordered the Lecce Chamber of Commerce to anonymise Mr Manni's
data which related to the liquidation of the company and pay him
damages. The Lecce Chamber of Commerce appealed this judgement and
the Corte suprema di cassazione then referred the question to the
ECJ for a preliminary ruling.
The preliminary ruling posed this question to the ECJ: does the
directive on protection of personal data and the directive on
disclosure of company documents preclude any person from accessing,
without time limit, data relating to persons set out in company
In considering this, the ECJ noted that the public nature of
company registers is intended to ensure legal certainty between
companies and third parties and matters requiring the availability
of information in the company register may still arise years after
the company has ceased to exist. Due to the diversity of companies
as well as the varying limitation periods of Member States, it was
impossible for the ECJ to identify a period after which entries in
the company register would no longer be necessary.
The interference with the fundamental rights of persons posed by
the availability of data on company registers was not considered
disproportionate as the personal information contained in company
registers is limited and justified on the basis that individuals
involved in companies should be required to disclose data relating
to their identity and function within a company.
The ECJ did not exclude the possibility that in some situations,
there could be legitimate reasons that may justify that access to
personal data available on company registers being limited upon
expiry of a sufficiently long period after the dissolution of the
company. This would be decided on a case-by-case basis and is for
each Member State to decide if it wants such limitation of access
in national law.
In Mr Manni's case, the ECJ considered that the fact
properties did not sell because purchasers could have accessed
information held on the company register did not justify limiting
access to the data.
What does this mean?
With this ruling, the ECJ has made it difficult for individuals
to argue that personal data contained in company registers should
be removed after dissolution of a company. The company register is
an important mechanism for third parties to find out information on
companies and the people behind them and therefore it seems that
there would need to be exceptional circumstances to justify
deletion of data on company registers.
This could all change once the General Data Protection
Regulation (GDPR) comes into force on 25 May 2018. The GDPR creates
a "right to be forgotten" which allows individuals to
request the deletion or removal of personal data where there is no
compelling reason to continue processing. This right is not
absolute but could, in some circumstances, provide a mechanism for
individuals involved in companies to request limitation of data
available on company registers where the company no longer exists
if they can argue that the data is no longer necessary.
To view the full press release on the decision please click here.
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