The Constitutional Court found no 552 / 2020 Coll.
The Constitutional Court found of 3 November 2020 sp. zn.
Valid
The Constitutional Tribunal found
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552
FIND
The Constitutional Court
On behalf of the Republic
The Constitutional Court decided under sp. zn. Pl. ÚS 10 / 17 on 3 November 2020 in plenary composed of the President of the Court of Paul Rychetský and the judges Louis David, Jaroslav Fenyk, Josef Fiale, Jan Filip, Jaromír Jirsa, Tomáš Licenčník, Vladimir Sládeček, Radovan Sukánek (Judge of the Rapporteur), Pavel Šál, Kateřina Šimáková, Vojtěch, Milír Tomková and Jiří Zemánek on the proposals and) of the Municipal Court in Prague, represented by the Judge JUDr.
as follows:
Proposals are denied.
Reasons
Subject matter
1. On 22 March 2017, the Constitutional Court received a motion from the Municipal Court in Prague ("the Municipal Court '), under which the President of Chamber 10 A JUDr. Ing. Viera Horčicová, on the annulment of Paragraph 20z (1) of the fourth sentence (in the last sentence) of Act No. 634 / 1992 Coll., on Consumer Protection, as amended by Act No. 378 / 2015 Coll., (" the Consumer Protection Act'). The Municipal Court has brought proceedings for the application of an interest association of legal entities SOLUS ("the Association '), under sp. 10 A 212 / 2013, against decisions of the Office for the Protection of Personal Data (" the Office') of 16 August 2013, No. The content of the application was opposed to the decisions of the Office by which associations were fined for an administrative offence involving the processing of consumers' personal data in the information database on consumer integrity and credibility. In fact, tax consumers have either withdrawn their consent to the processing of personal data or have not given it at all. The association relied on the processing of personal data by Article 5 (2) (e) of Act No. 101 / 2000 Coll., on the protection of personal data and on the amendment of certain laws, as amended by 24 April 2019 ("the Act on the protection of personal data '). According to that provision, the processing of personal data was permitted without the consent of their subjects, provided that it was necessary to protect the legitimate interests of the controller and that it did not involve disproportionate interference in the private life of the data subjects.
2. On 1 February 2016, Act No. 378 / 2015 Coll., amending Act No. 634 / 1992 Coll., on Consumer Protection, as amended, and certain other laws, (hereinafter "the amendment '), which amended the Consumer Protection Act, inter alia, so that consumer personal data could be processed in situations similar to those referred to in point 1 above without their consent. The municipal court agreed with the resolution of the extended Senate of the Supreme Administrative Court of 16 November 2016 No 5 As 104 / 2013-46 (hereinafter referred to as the" NSS Resolution') and assessed the case in such a way that the amendment constituted legislation within the meaning of Article 40 (6) of the Charter of Fundamental Rights and Freedoms (hereinafter referred to as the "Charter ') for associations more favourable. It therefore concluded that this is an adjustment which, according to the NSS resolution, is to be applied in the present case. However, in the contested provision, the Municipal Court saw a conflict with the rights of everyone to protect against unauthorised interference in private life pursuant to Article 10 (2) of the Charter and the unlawful collection of personal data on their person pursuant to Article 10 (3) of the Charter.
3. On 18 August 2017, the Constitutional Court received notification of a motion from a group of 17 Senators (hereinafter referred to as "the group of Senators'); together with the municipal court, the" appellants'), for which the then President of the Senate Jaroslav Kubera acted at the time of the motion, on the annulment of § 20z (1) of the third and fourth sentences (in the proposal marked as last and last sentences) of § 20z (1) of the Consumer Protection Act, to which the Pl. ÚS 20 / 17 has been assigned.
4. The above-mentioned motion by the City Court of 22 March 2017 opened proceedings for the annulment of the above-mentioned provision, which was also in agreement with a group of senators, who, in addition to the annulment of the fourth sentence, also proposed the annulment of the third paragraph of Article 20z (1) of the Consumer Protection Act. The Constitutional Court later submitted a proposal in the part in which it conforms to the proposal of the Municipal Court, I, by order of 23. 1. 2018 sp. zn. Pl. ÚS 20 / 17 (all decisions of the Constitutional Court are publicly available from https: / / nalus.ujud.cz), refused for inadmissibility due to the impediment to the case initiated (litispendence) pursuant to Article 35 (2) of Law No 182 / 1993 Coll., on the Constitutional Court. The group of Senators, as another applicant, has acquired an intervener in the earlier proceedings under the sp. zn. Second statement of resolution sp. zn. Pl. ÚS 20 / 17 The Constitutional Court linked the motion of a group of Senators to abolish the third sentence of Paragraph 20z (1) of the Consumer Protection Act to the proceedings conducted under sp. zn. The scope of this procedure is therefore defined by the proposals and objections of the two applicants.
Text of the contested provisions
5. The proposals are directed against the third and fourth paragraphs of Article 20z (1) of the Consumer Protection Act (hereinafter referred to as "the contested provisions'), the subject of which is also, according to the title of Part Five of the Act, the" information database on the integrity and credibility of consumers', hereinafter referred to as the register, otherwise also referred to as the so-called negative register of debtors (hereinafter referred to as "the register '). Paragraph 20z of the Act was amended, the purpose and basic structure of the register being defined in paragraph 1, which is worded (the contested provisions are marked in bold):
(1) In order to protect the rights and the rights of protected interests of sellers and consumers, which consist of assessing the ability and willingness of consumers to fulfil their obligations, sellers who receive claims from loans or other claims for long-term or replenishment against consumers may inform each other through information databases (hereinafter referred to as "the register ') of consumer identification data and of matters which indicate that they are entitled to confidentiality, payment morale and consumer credibility, even if they are required under another law. 46 At least 10 sellers, which are banks under another law governing the activities of banks, selling consumer credit under another law governing the provision of consumer credit, payment institutions under another law governing payment or small-scale payment service providers under another law governing payment. The register may be operated by a legal person who is not a seller and whose main purpose is not business (hereinafter referred to as operator) under the conditions laid down by this law. The mutual information and processing of personal data in the register does not require the consent of the consumer.
[...]
_ _ _ _ _ _ _
46) For example, § 38 of Act No. 21 / 1992 Coll., on Banks, as amended, § 11 (1) (g) of Act No. 458 / 2000 Coll., on the Terms and Conditions of Business and on the Performance of Government Administration in the Energy Sector and on the Amendment of Certain Laws (Energy Act), as amended, § 127 of Act No. 277 / 2009 Coll., on Insurance. '
6. The third provision defines the conditions to be met by the registry operator (hereinafter referred to as "the operator '). It must be a legal person, but must not be a seller pursuant to § 2 (1) (b) of Act No. 634 / 1992 Coll., on consumer protection, i.e. an entrepreneur who sells products or provides services to the consumer. At the same time, the main purpose of this legal entity must not be business. The sentence of the fourth provision cited then provides that consumer consent is not required for the mutual information and processing of personal data in the register. The manner in which these data are processed and access to them are detailed in the following paragraphs of Section 20z of the Consumer Protection Act.
Arguments of the applicants
Arguments of the City Court
7. The concept of a city court is the processing of consumer personal data in the register without their consent, on the basis of the fourth sentence of Section 20z (1) of the Consumer Protection Act. The City Court cites in particular recital 29 of the Constitutional Court's finding of 22.3.2011 sp. zl. ÚS 24 / 10 (N 52 / 60 CollNU 625; 94 / 2011 Coll.) and recital 63 of the finding of 20.12.2016 sp. zl. ÚS 3 / 14 (N 246 / 83 SbNU 793; 73 / 2017 Coll.) to the alleged infringement of the right to protection against unauthorised interference in private life and the unlawful collection of personal data.
8. According to the municipal court, it is undisputed that in the present case the contested provision provides for the licence of an association of entrepreneurs to process consumer personal data without their consent, without any of the general reasons for the absence of such consent permitted under Article 5 (2) of the Data Protection Act. It follows that, in individual cases, the adequacy of the impact of data processing into the private life of the individuals concerned will not be assessed, as is the case with Section 5 (2) (e) of the Data Protection Act. Article 6 (1) (f) 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 repealing Directive 95 / 46 / EC (General Data Protection Regulation), hereinafter referred to as "the General Regulation ', is also prohibited.
9. The legitimate interest of entrepreneurs in obtaining information on previous consumer debts under the Municipal Court is not covered by the constitutionally guaranteed rights under Article 11 of the Charter or Article 1 of the Additional Protocol to the Convention on the Protection of Human Rights and Fundamental Freedoms ("the Protocol '). These include a legitimate expectation of the protection of future assets, which is, however, a right to a specific increase in assets that an individual relies on under the legislation in force. In addition to this interest, there is also an interest that consumers should not be massively overindebted and put themselves and the economy in an impossible situation.
10. The interests of entrepreneurs and society in the fight against overindebtedness will not stand in the proportionality test when measuring consumers' right to private life. Although the measure chosen will stand in its first step, the suitability test, as it is capable of achieving the objective of assessing consumers' ability to repay debts; it is likely also to reduce the number of overindebted consumers. However, the measure in question is not supposed to stand up to the necessity test. Entrepreneurs may verify the creditworthiness of consumers, in particular on the basis of information provided voluntarily to the consumer: in particular, declarations and certificates, insolvency registers or databases, which apparently operated under Section 20of the Consumer Protection Act on the basis of consumer consent to the processing of personal data. The possibility of granting a loan to a consumer who is subsequently unable to repay it is to be part of the business risk. This risk cannot be completely avoided - even a consumer not registered in a register can be overpaid to third parties in a non-contributor register or otherwise will not be allowed to repay the potential debt.
11. Article 8 (1) of Directive 2008 / 48 / EC of the European Parliament and of the Council of 23.4.2008 on consumer credit agreements and repealing Council Directive 87 / 102 / EEC (hereinafter referred to as "the Directive") does not imply an obligation for consumer credit providers to keep a database on their obligations without the consent of consumers. According to the interpretation in the judgment of the Court of Justice of the European Union ("the Court ') of 18.12.2014 in Case C-449 / 13 CA Consumer Finance SA v Ingrid Bakkaus and Others, the Directive does not impose an obligation on credit providers to check the truthfulness of the information provided by the consumer. The directive merely gives national legislation space to establish a database. The obligation of entrepreneurs cannot be derived from the judgment of the Court of Justice of 27 March 2014 in Case C-565 / 12 LCL Le Crédit Lyonnais SA v Fesih Kalhan, to which reference is made in the explanatory memorandum to the amendment submitted in the Chamber of Deputies, on the basis of which Article 20z was inserted into the Consumer Protection Act. Nor can the obligation be inferred from Article 9 (1) of Act No. 145 / 2010 Coll., on Consumer Credit and on the amendment of certain laws, as amended by Act No. 43 / 2013 Coll., which is almost literally a transposition of the Directive.
12. The databases referred to in Section 20z of the Consumer Protection Act do not only concern providers of consumer credit, but may, within the meaning of the first sentence of paragraph 1 and paragraphs 6 and 7 of that provision, provide data from the database in relation to any potential debt of the consumer not met in the provision of services or goods. Nor can it be argued that this is a follow-up to consumer protection against excessive debt through consumer credit.
13. The data collected in the register can be made available, according to the municipal court, for example to companies providing telecommunications or energy services (such companies are also members of the association). If these companies would refuse to conclude contracts with consumers, it would be far more important to make such basic services inaccessible to consumers than not providing certain financial products. According to the municipal court, it cannot be argued that consumers unable to pay their debts for energy or similar services would pose a threat to the economy, such as, for example, irreparable mortgages, consumer loans, etc.
14. In the event that the Constitutional Court does not agree with the appellant's legal opinion, the Municipal Court states that the contested provision will not stand even in the final step of the proportionality test, an examination of proportionality in the narrower sense. It is clear that the right to the protection of private life and information self-determination is prima facie stronger than the economic interest of entrepreneurs in avoiding the provision of goods and services to insolvent consumers. There is quite a serious impact on one of the fundamental human rights and simply a reduction in the risk of business. Despite the social interest in preventing over-indebtedness of consumers, the scope of processing and the provision of personal data to third parties is broad and vague. It is not a measure comparable, for example, to a banking register maintained by the Czech National Bank, which provides sufficient guarantees of protection of the collected personal data; In addition, bank register data may only be provided to banks and similar entities in the financial services sector.
Arguments of a group of senators
15. A group of senators joined the city court's argument in the proposal. It added that the objective of the statutory regulation can be achieved more favourably against the consumer, for example by using the execution register, enabling publicly available sources to determine whether the consumer is in bankruptcy, has a narrow scope of the joint capital of the spouses or on their immovable property and selected movable property rights, etc. The contested legal regulation is allegedly based on the presumption of poor consumer creditworthiness, which may also lead to the creation of an information database for consumers who are not even troubled debtors, thereby introducing inequality into the consumer relationship to the detriment of the weaker party.
16. Paragraph 20z (1) of the third sentence of the Consumer Protection Act, against which, moreover, the draft group of Senators is directed, cannot stand in the proportionality test because it would be entrusted in a more gentle manner to those entities that are sellers and businesses in the field. The so-called outsourcing of this activity allows the consumer data to be held without its consent by entities that have not even entered into a direct legal relationship with it. Such bodies may participate in the discharge of his right to privacy and personal data, which may in practice mean that a third party database is kept on the consumer without any contract being concluded between the consumer.
Proceedings before the Constitutional Court
17. The Judge-Rapporteur referred to in Article 42 (4), in conjunction with Article 69 of the Law on the Constitutional Court, as amended, sent a motion for observations to Parliament's chambers, to the Government and to the Ombudsman as authorities entitled to intervene as interveners and, in view of the nature of the subject matter of the proceedings, to the Office.
Observations of the Chamber of Deputies
18. The Chamber of Deputies, in its observations of 26 April 2017, signed by then President Jan Hamakk, and in its observations of 16 January 2020, signed by President Radek Vondráček, was limited to a brief summary of the legislative process leading to the adoption of the contested provisions (see paragraphs 40 et seq.). The Chamber of Deputies, according to its observations, acted in the belief that the contested legislation was in accordance with the Constitution and the law of the Czech Republic.
Statement by the Senate
19. The Senate, in its observations of 24 April 2017 and 7 January 2020, briefly summarised the debate held at the Senate meeting on 12 November 2015, in which three senators expressed doubts as to the constitutional consistency of the part of the amendment which was to be inserted into the Consumer Protection Act in Part Five entitled "Information Database on the Bothiness and Trust of the Consumer." The Senate adopted an amendment to delete the proposed part of the fifth Consumer Protection Act from the amendment. Subsequently, the Senate expressed its willingness to return the draft amendment as amended to the Chamber of Deputies.
Government communications
20. The Government of the Statements of Ministers JUDr. Jan Chvojka of 28 April 2017 and Mgr. Marie Benešová of 14 January 2020 It informed the Constitutional Court that it would not intervene.
Communication from the Ombudsman
21. The Ombudsman also informed the Constitutional Court of 7 April 2017 and 6 January 2020 that she would not enter the proceedings.
Communication from the appellant
22. The Municipal Court informed the Constitutional Court by letter of 29 January 2020 that it did not intend to apply a reply to the observations of the parties.
Communication from the intervener
23. The intervener informed the Constitutional Court by letter dated 3 June 2020 that it did not intend to apply the reply to the above observations and that Senator Jiří Oberfalzer would continue to act for it.
Expression of the Office for the Protection of Personal Data
24. According to the Office, the contested provision was not part of the original bill, but was proposed at second reading when the amendment was discussed in the Chamber of Deputies. Thus, the proposal did not, in practice, go through a proper comment procedure and was not consulted with the Office in the form presented, as the President of the Office pointed out by letter dated 10 September 2015 addressed to the President of the Economic Committee of the Chamber of Deputies. This has not led to an assessment of the impact on the protection of personal data and the proper setting of the processing of personal data in the Register in accordance with the general principles of the protection of personal data, although the contested provision interferes with the constitutional fundamental right to privacy and personal data.
25. In particular in the Senate it was pointed out that the amendment was not accepted as an "adhesive." The contested provision was adopted as part of the draft amendment to the Consumer Protection Act submitted as an implementation of the Alternative Dispute Settlement Directive, while debtor registers are not part of this issue. In the debate on the draft amendment, it was said that the amendment was protected only by the seller and said that the consumer was unreliable. It was also stated that the purpose of the register may also be to provide information on how indebted and therefore prone to further indebtedness, which can be misused. On the other hand, other views considered it necessary to adopt an adjustment to the register in order to meet the commitments to the Organisation for Economic Cooperation and Development and to the World Bank.
26. According to the Office, under the name of § 20z of the Consumer Protection Act (see above Part II), few will imagine that it is actually a debtor's register; the usual labelling of the "debtor register 'in European and international law is out of the question. This issue should have been part of the Consumer Credit Act, where it belongs. The contested provision protects almost exclusively the seller and consumer protection in this case can be seen to the greatest extent as protection against themselves. Furthermore, the contested provision allegedly does not comply with the requirements of the General Regulation.
27. The concept of Article 20z of the Consumer Protection Act is not proportionate as its purpose is not specific, explicit and generally legitimate and the requirements of the scope, accuracy and limitation of the processing time are not respected. According to the Authority, the information obligation must be proportionate to the seriousness of the interference with the right to privacy while respecting all rights of data subjects under the General Regulation. The rights of data subjects to access and correct personal data should therefore be ensured, as well as the right to object to processing on grounds of serious and legitimate reasons. The register may contain information that cannot be reasonably requested, e.g. potential contract participants, consumer birth numbers or the provision of personal data for remuneration.
28. The Authority also stated that it currently records 70 complaints against registries, 43 of which are to be found in the association. In their complaints, the complainants argue that, although they have already repaid their debts, they are still kept in the register, which negatively affects their personal situation. Requests for erasure could not be met by the Office for the text of the contested order. In conclusion, the Authority noted that France found the inconstitutionality of its positive register (i.e. databases identifying information on consumer debt paid up and potential), with the negative register being maintained by the National Bank, not by private entities. According to the Authority, the contested provision should therefore be repealed.
Observation of SOLUS interest association
29. On the application, the association which is not a party to the proceedings sent comments spontaneously and therefore the Constitutional Court merely took note of its observations. In its observations, the association stated that the draft amendment was discussed in the constitutional legal committee of the Chamber of Deputies, including amendments. In the light of the Authority's observations, the Committee did not agree with the original proposal, which overlimited consumer information autonomy, in particular allowing all entrepreneurs to participate in databases, regardless of their real need, nor did it allow the consumer to influence his records in positive registers, nor did it provide for the consumer's consent to ask for information contained in positive registers. At the second reading, a parliamentary amendment, which took into account the comments made in that committee and the comments made by the Authority, was the basis for the discussion of the constitutionally legal committee.
30. According to the association, client information registers are a common part of the legislation of the Member States of the European Union and, according to the World Bank assessment, more information is shared in registers than in the Czech Republic, for example. For example, in the Italian Republic, the Netherlands or the UK, registers operate only on the basis of the general rules governing the processing of personal data. According to the association, the legislative solution chosen is needed both for the urgent interest of creditors and for the interests of the whole society to prevent overindebtedness of consumers. If some creditors are obliged to take professional care to avoid overindebtedness of the consumer, they must have a database from which to find the necessary information. Additional overindebtedness solutions in the form of execution or insolvency proceedings are hardly replaceable in the limited functioning and information databases. Consumers have a logical desire to demonstrate their credence as best possible, and the provision of the necessary information only by themselves is therefore extremely unreliable. It could make it impossible to achieve the regulatory objective conditional on obtaining information from consumers. In addition, the association states that, in the STEM / MARK survey, 40% of consumers claimed that they would hide their liabilities beyond due when applying for a financial service.
31. According to the Association, the Charter does not imply that the legitimate collection of personal data would be the treatment of such data only with the consent of the relevant bodies. The Association considers that the legislator may provide for other forms of processing of personal data as justified, while the content of the right to privacy must not be deleted. In the context of Article 20 of the Consumer Protection Act, it is clear that the contested provision protects consumers from processing data on their family life or sensitive data. The contested and related provisions exclude a potential conflict of interest with the head of the register entity (which cannot be set up for business purposes), only to authorised entities and only allow information to be provided under certain conditions and give the consumer the right to refuse to register in a positive register. The protection of the weaker party is based in domestic law on the limitation of the autonomy of the will; the consumer cannot negotiate a credit unless its creditworthiness is sufficient and entrepreneurs (e.g. in the field of electronic communications or energy trading) cannot unreasonably refuse to negotiate services. According to the association, § 38a (1) of Act No. 21 / 1992 Coll., on Banks, as amended, entrusts the operation of the register to private entities. In summary, the association considers that the application by the municipal court is not justified.
Observation Consulting in financial distress, o. p. s.
32. The Constitutional Court also received observations from the Consulting Office at the time of the financial crisis, o. p. s. (hereinafter referred to as the "Consultation"), which it also took into account. The consultancy summarized the basic reasons for the existence of the register and the importance of the public interest in preventing overindebtedness of consumers. It pointed out that domestic legislation does not deviate from the European standard, rather it is even stricter. According to the advice, the data are only indicative of consumer obligations towards business entities and, with the exception of consumer default data, the consumer may refuse to register, or, in his disagreement, prevent the seller from accessing data in the register. In the rest, the consultant expressed a similar statement to the association; It summarised that the contested legislation fulfils the proportionality test and that the proposal for its annulment is not justified.
Oral proceedings
33. According to Article 44 of the Law on the Constitutional Court, as amended, the Constitutional Court decided without holding oral proceedings because it could not be expected to further clarify the case.
Active procedural legitimacy and conditions of proceedings before the Constitutional Court
34. Under Article 64 (3) of the Law on the Constitutional Court, as amended, the Court is also entitled to file an application for annulment of the Act or its individual provisions in the context of its decision-making activities pursuant to Article 95 (2) of the Constitution of the Czech Republic (hereinafter referred to as the Constitution). According to that Article, if the court concludes that the law to be applied in the resolution of the case is contrary to the constitutional order, it shall bring the matter before the Constitutional Court. That condition of the design authorisation is fulfilled if it is a law (its provision), the application of which is immediate and unavoidable in the case in question and which simultaneously prevents the achievement of the desired (constitutionally consistent) result (see e.g. the finding of 17.7.2019 sp. zn.
35. The Municipal Court has put forward an application for annulment of the fourth Paragraph 20z (1) of the Consumer Protection Act, as it is to be used in proceedings brought before it under sp. footnote 10 A 212 / 2013. The Constitutional Court has examined whether the municipal court fulfils the condition of active legitimacy, i.e. whether the contested provision is actually to be used in the proceedings conducted by the municipal court. The review in the proceedings before the Municipal Court shall include the content of the Authority's decisions based on the conclusion that some of the exceptions to the general obligation of database administrators to process personal data with the consent of the persons concerned under Section 5 (2) of the Personal Data Protection Act are not met. The management register is further defined in (from 1 February 2016 effective) § 20of the Consumer Protection Act, which is why the municipal court had to review the compliance of the registry management with the conditions under § 20z after accepting the conclusions contained in the NSS Resolution in the present proceedings. In the event of the non-constitutionality of the contested provision, the specific conditions of leave would be waived without the consent of the parties concerned to the processing of their personal data. The assessment of the legality of administrative acts was thus unavoidable and directly dependent on the application of the contested provision at the time the proposal was submitted.
36. In the course of the proceedings, the Municipal Court informed the Constitutional Court that the action brought by the City Court for the annulment of the contested provision was withdrawn. The Constitutional Court therefore had to deal with the question of whether, even in this procedural situation, the municipal court was actively legitimised to submit the application. On presentation of the case to the Constitutional Court, before the withdrawal of the application by the association, the municipal court brought before it in accordance with the law. This procedure remains suspended now, but it is clear that, as a result of the withdrawal of the action, it will result in the termination of the procedure and, therefore, the possible annulment of the contested provision would not affect the outcome of the procedure on which the application for annulment of that provision arose. Nevertheless, this does not mean that the municipal court is not entitled to submit an application. In fact, its authorisation depends on the situation at the time of the initiation of the procedure, and later facts cannot affect it. The Law on the Constitutional Court does not link the waiver of the conditions of the applicant's active legitimacy during the proceedings to the rejection of the application or termination of proceedings (cf. FILIP, J. - HOLLÄNDER, P. - ŠIMÍČEK, V. Law on the Constitutional Court. Comment. Issue 2. Prague, 2007, p. 362, 399). In the absence of an application for annulment of the contested provision by a group of senators, a paradoxical situation could arise in which, despite the active legitimacy of the court at the time the application for annulment of the provision of the law could not be reviewed after the withdrawal of the action, the provisions of the law could be potentially contradictory with constitutional order. The review of the Constitution would then depend on the current procedural situation in the proceedings before the Constitutional Court.
37. The Constitution and the Law on the Constitutional Court do not make any distinction between the so-called abstract and concrete control of constitutionality, but regulate one procedure for the repeal of laws and other laws, the result of which has the same legal effects, whether or not it has been initiated in connection with a particular matter. After the proceedings have been initiated on a proposal that meets all the statutory requirements, the proposal cannot be withdrawn [the finding of 12.4.1995 sp. zn. Pl. ÚS 12 / 94 (N 20 / 3 SbNU 123; 92 / 1995 Coll.)] because there is a public interest in the assessment of the constitutionality of the contested legislation, the result of which will bind both the institutions and persons (Article 89 (2) of the Constitution). For these reasons, the Constitutional Court deviates from the legal opinion expressed in the decision of 4.4.2006 sp. zn. Pl. ÚS 5 / 05 (N 77 / 41 SbNU 11; 303 / 2006 Coll.), in which it concluded, in a comparable situation, that there was an additional waiver of the active legitimacy of the proposing court and further treated as an appellant with another court having the status of intervener in this proceedings, since its subsequent application for annulment of the same legal provisions was rejected because of litispendency (§ 35 (2) of the Constitutional Court Act). Although the City Court will not be able to apply the contested provision, it submitted a proposal in accordance with Article 64 (3) of the Constitutional Court Act, as amended, "in the context of its decision-making activities under Article 95 (2) of the Constitution 'and the Constitutional Court did not find it manifestly unjustified to submit the application. In the light of the procedural procedure, the connection with the proceedings originally initiated by a group of senators and, therefore, the definition of the subject matter and the parties to the proceedings, precisely this procedure corresponds to the material concept of law, since the Constitutional Court is expected to take a final decision on the question which arises from the proposals (if the other conditions are met). The Constitutional Court concluded that the municipal court was actively authorised to submit an application for annulment of the fourth Paragraph 20z (1) of the Consumer Protection Act.
38. As regards the application for annulment of the third sentence of Paragraph 20z (1) of the Consumer Protection Act (Resolution sp. zn. Pl. ÚS 20 / 17), pursuant to § 64 (1) (b) of the Constitutional Court Act, a group of at least 17 Senators also has the right to file a motion for annulment of the Act or its individual provisions. The application was lodged by a group of 17 senators; In accordance with Article 64 (5) of the Law on the Constitutional Court, as amended by Act No. 320 / 2002 Coll., it also attached to it a signature document to which each of them individually confirmed that it was attached to the application. The applicant therefore fulfils the condition of active legitimacy.
39. The two proposals submitted to the Constitutional Court in the case under title contain all the legal requirements required, they are not inadmissible under Section 66 of the Law on the Constitutional Court, as amended by Act No. 48 / 2002 Coll., and there is no reason to terminate the procedure under Section 67 of the Law. The Constitutional Court has therefore discussed both proposals together.
Assessment of competence and constitutional consistency of the procedure for the adoption of the contested provisions
40. According to Article 68 (2) of the Law on the Constitutional Court, as amended by Act No. 48 / 2002 Coll., the assessment of the constitutionality of the law with a constitutional order consists of answering three questions: firstly, whether it was adopted and issued within the limits of the Constitution by a specified competence; Secondly, whether it was adopted in a constitutional manner; Third, whether its content complies with constitutional law.
41. The contested provisions became part of the Consumer Protection Act on 1 February 2016, when the amendment took effect in the part which was inserted into the Consumer Protection Act in Part Five (containing Sections 20z and 20za of the applicable text of the Consumer Protection Act).
42. Pursuant to Article 15 (1) of the Constitution, Parliament had the power to adopt the amendment. From the statements of his chambers as well as publicly available documents relating to the legislative process, the Constitutional Court found that the draft amendment (House Press No. 445, 7th Election, 2013- 2017) was submitted by the Government to the Chamber of Deputies on 31 March 2015. The draft law initially did not include the establishment of a register. This adjustment was part of the amendments adopted by the Economic Committee as the Guarantee Committee (House Press No. 445 / 3, Article I, point 5). The contested provisions were also part of the amendment tabled by Mr Mgr. Radek Vondráček in the detailed debate of the second reading, held on 16 September 2015 at the 31st session of the Chamber of Deputies (Parliamentary Press No. 445 / 6, Part A, paragraph 5). As part of House Press No. 445 / 6, the contested provisions were approved at third reading, held on 7 October 2015 at the 33rd session of the Chamber of Deputies (Resolution No 902); 176 of the 179 Members present voted in favour, no one opposed.
43. The draft amendment referred to by the Chamber of Deputies on 19 October 2015 was discussed by the Senate (Senate Document No 139, 10th term of office, 2014- 2016) at its 14th session and returned to the Chamber of Deputies with amendments including the deletion of Part Five, i.e. the contested provisions (Resolution No 273, paragraph 3 of the Annex). They were adopted by a proposal from the Committee on Territorial Development, Public Administration and the Environment, which discussed the proposal as referred to by the Chamber of Deputies on 4 November 2015 at its 15th meeting (Resolution No 74 of the Committee on Territorial Development, Public Administration and the Environment, point 2 of the Annex). 49 of the 53 senators present voted in favour of the amendment to delete the contested provisions, no one was against it. 47 of the 53 senators present voted for the refund, no one was against it.
44. The Chamber of Deputies on 9. 12. 2015 at its 36th session did not approve the bill, as approved by the Senate, when 61 of the 167 Members present voted for it, 73 voted against. At the same meeting, the Chamber of Deputies remained on the original draft amendment (Resolution 997); 168 of the 171 Members present voted in favour, one opposed. The law adopted was delivered to the President of the Republic on 11 December 2015 and signed on 15 December 2015. Its publication took place on 28. 12. 2015 in the amount of 161 Collection of Laws under No. 378 / 2015 Coll.; it became effective on 28. 12. 2015, with the exception of certain provisions (including § 20z) which took effect on 1. 2. 2016.
45. The above findings make it possible to conclude that the constitutionally prescribed sequence and the majority necessary to approve the bill in Parliament's chambers were respected in the legislative process. The adopted law was also delivered to the President of the Republic, who did not exercise his right to return it to Parliament and signed it. The contested provision was therefore adopted in a constitutional manner.
Own review
General considerations
46. In the present case, it is mainly a conflict of consumer rights to protect against the unauthorised processing of their personal data with the interest of entities offering them financial services (sellers or entrepreneurs) which may, under certain conditions, obtain information from the register or of conflicts with the company's interest in the solvency of consumers as buyers. In other words, this is a conflict of fundamental law with a potentially legitimate (public) interest (see below for its constitutional relevance).
Right to privacy and information self-determination
47. The right to information self-determination shall form part of the fundamental right to privacy in the wider sense, as laid down in particular in Articles 7 (1) and 10 (2) and (3) of the Charter. Article 10 (3) Each Charter shall have the right to protection against unauthorised collection, disclosure or other misuse of data on its person.
48. A fundamental claim to the autonomy of the individual resulting from human rights is the requirement of respect for the self-contained order of life, one of which is one of the main functions of which is the protection of personal data. The right to respect for private life is divided into several provisions in the Charter and supplemented by other stated aspects of the right to privacy. The basis of the legislation is the right of the individual to decide at his or her discretion whether or not to what extent and under what conditions the facts and information from his or her privacy are to be made available to other bodies. The sub-attributes of this right are the right to information self-determination, the constitutional basis of which can be derived from Article 10 (3) of the Charter [cf. the findings of the Constitutional Court sp. zn. IV. ÚS 23 / 05 of 17.7.2007 (N 111 / 46 of SbNU 41) or sp. zn. ÚS 705 / 06 of 1.12.2008 (N 207 / 51 of SbNU 577) as well as the decisions of the Federal Constitutional Court of 15.12.1983 BVerfGE 65, 1 (Volkszählungsurteil) or of 4.4.2006 BVerfGE 115, 320 (Rasterfahndungurteil II)], in conjunction with Article 7 (1) of the Charter guaranteeing the inviolability of the person and its privacy and Article 13 of the Charter, which protects the secrets and the secrets and the secrets of other documents, whether they are kept in privacy, whether they are kept in private or protected. However, in the Charter, the list of what needs to be included in the privacy framework cannot be considered to be taxative (see sp. zn.
49. The right to information self-determination with other constitutionally guaranteed fundamental rights complements the personality sphere of an individual whose individual integrity as a necessary condition for the dignified existence of man and the development of human life must be respected and consistently protected. The law therefore guarantees respect and protection of this sphere by constitutional order; assessed only from a slightly different angle, this is an expression of respect for the rights and freedoms of man and citizen within the meaning of Article 1 (1) of the Constitution [cf. the finding of the Constitutional Court of 22 March 2011 sp. zn.
50. The European Court of Human Rights ("ECHR"), in interpreting Article 8 of the Convention on the Protection of Human Rights and Fundamental Freedoms ("the Convention"), has repeatedly emphasised that the collection and retention of data relating to the private life of an individual falls within the scope of this Article, while the term "private life" must not be interpreted strictly (in particular, Case No 8691 / 79 Malone v United Kingdom). According to the ECHR, the extensive interpretation of this concept is in conformity with the Convention on the Protection of Persons with regard to Automatic Processing of Personal Data (valid in the Czech Republic since 1.11.2001; no 115 / 2001 Coll. s.), which aims to guarantee each natural person respect for his or her fundamental rights and freedoms, in particular his or her right to private life in connection with the automated processing of personal data relating to him or her (cf. judgment of 16.2.2000 in Case No 27798 / 95 Amman v Switzerland).
51. The exceptions to the prohibition of State interference in the right to private life, necessary in a democratic society and in accordance with the law, by virtue of calculated values of public interest or the protection of the rights and freedoms of others, are interpreted strictly by the ESLP. The acts of public authority which constitute interference with the right to private life must not be found outside judicial control (see, for example, Case 21353 / 93 Camenzind v Switzerland [1997] ECR 21353 / 93).
52. The Constitutional Court has repeatedly emphasised the importance and importance of the fundamental right to information self-determination in a democratic society of a materially-adopted rule of law. In paragraph 30 of the preamble to the finding in sp. zn. The right to information self-determination [...] is thus an essential condition not only for the free development and self-implementation of an individual in society, but also for the establishment of a free and democratic communication order. To put it simply, under the conditions of an all-knowing and omnipresent state and public power, freedom of expression, the right to privacy and the right to free choice of conduct and conduct have become virtually non-existent and illusory. "This imperative must be borne in mind for its own consideration in the conflict of standing fundamental rights, or fundamental law and the constitutionally and challenged public (legitimate) interest. However, the difference is that, in the case under examination, the" control 'of an individual is not directly about the ubiquitous' public power, but about the democratic legislator established by the right of private bodies not to disclose but to process personal (but not sensitive - see below) data from other private individuals - consumers internally. These partial differences constitute, against the background of the general definition of the right to information self-determination, one of the main bases of its constitutional review of the contested provisions.
Consumer protection and personal data
53. Consumer protection, together with the protection (s) of personal data, are dynamically evolving areas of the rule of law, both at national and EU level. Although European Union law is not a reference criterion of constitutionality [see the finding of 14.5.2019 sp. zn. ÚS 50 / 04 (N 50 / 40 SbNU 443; 154 / 2006 Sb.) or of 3.5.2006 sp. zn. ÚS 66 / 04 (N 93 / 41 SbNU 195; 434 / 2006 Sb.)], its relationship to the Union legal regime of general consumer protection and personal data. Even in the proceedings referred to in Article 87 (1) (a) or (b) of the Constitution, only the Court of Justice gives a binding interpretation of the law of the European Union [cf. the finding of 7.4.2020 sp. zn. When reviewing the constitutionality of the legal standard in this procedure, its incapacity to interpret it in a manner compatible with European Union law, which (if) is also a deficit of the constitutional dimension, leads to its abolition. However, the conflict with European Union law was not found by the Constitutional Court in the case under examination.
54. The relevant legislation is, in particular, the Consumer Protection Act, Act No. 257 / 2016 Coll., on Consumer Credit, as amended, the General Regulation (GDPR, see paragraph 8) and Act No. 110 / 2019 Coll., on the Processing of Personal Data, which follows the directly applicable General Regulation and replaced the Personal Data Protection Act on 24 April 2019; This heading includes the Directive (see paragraph 11) and certain other Union provisions.
55. The basis for consumer protection in co-incident with the protection of personal data at the level of primary Union law is the Charter of Fundamental Rights of the European Union ("the EU Charter '). According to it, a high level of consumer protection (Article 38) and personal" data must be processed correctly, for precise purposes and on the basis of the consent of the person concerned or on the basis of any other legitimate reason provided for by law, is ensured in European Union policies, namely at national level in implementing these policies. Everyone has the right to have access to and rectification of data collected from them (Article 8 (2)); that law is also guaranteed by Article 16 of the Treaty on the Functioning of the European Union as one of the principles generally applicable in all Union policies. In accordance with Article 51 (1), those provisions of the EU Charter are "intended' for the Member States as well," only if they apply Union law 'and do not extend the scope of European Union law beyond the powers conferred on them (paragraph 2). The term "designated' means" EU Charter beyond all doubt 'means a commitment to respect its provisions fully, and all procedures and acts of the Member States' institutions (legislative, executive and judicial powers) directly associated with ensuring the full national effects of the Union regulation in question must be regarded as "application 'of European Union law [cf. PIERS, S. HERVEY, T.; KENNER, J.; WARD, A. (eds.). The EU Charter of Fundamental Rights. And Commentary. London: Hart Publishing, 2014, p. 1433-1448, and the judgments cited therein by the Court of Justice, e.g. C-617 / 10 Aklagaren v Akerbeg Fransson, C-411 / 10 and C-493 / 10 NS v Secretary of State, C-370 / 12 Thomas Pringle v Government of Ireland]. Therefore, although Article 8 of the EU Charter is not directly applicable as part of the reference framework for the constitutional review of the contested provision, the right to the protection of personal data under Article 8 of the EU Charter is, however, a source of criteria for the (Euroconformal) interpretation of the laws of the Member States in the field of the protection of personal data which affect the application of national standards. The relevant provisions of the EU Charter are therefore relevant both for the interpretation of the General Regulation and for the application of the Personal Data Processing Act, which is consistent with European Union law.
56. Paragraph 5 of the Personal Data Processing Act authorises the controller of personal data (i.e. even the operator within the meaning of Section 20z of the Consumer Protection Act) to process data if this is necessary to fulfil the obligation imposed on him by law or a task in the public interest. The General Regulation makes the processing of personal data subject subject to the law of the controller's consent [Article 6 (1) (a)], unless such processing is "necessary for the fulfilment of the legal obligation applicable to the controller" [point (c)], or "necessary for the performance of the task carried out in the public interest or in the exercise of the public authority entrusted with the controller" [point (e)], or "necessary for the purposes of the legitimate interests of the controller or third party, except where the interests or fundamental rights and freedoms of the data subject requiring the protection of personal data, in particular where the data subject is a child" [point (f)]. The processing of sensitive personal data shall be prohibited if it is not "necessary for reasons of significant public interest [...], which is proportionate to the objective pursued, respects the nature of the right to data protection and provides appropriate and specific safeguards for the protection of the fundamental rights and interests of the data subject '[Article 9 (2) (g)]. In accordance with Article 9 (1) of the General Regulation, sensitive personal data are information indicating racial or ethnic origin, political views, religion, philosophical beliefs and others, which is why neither the prohibition of their processing nor the exceptions are relevant to the matter under consideration.
57. Article 6 (2) of the General Regulation provides for the possibility for Member States to provide for more specific arrangements for adapting the rules on the processing of personal data under Article 6 (1) (c) and (e) of the General Regulation (see above). It can be concluded, inter alia, from Article 20 of the Consumer Protection Act that the legislator has exercised that option, in accordance with Article 6 (3) of the General Regulation, defining further assumptions of the legal basis of the relevant clarification. It is appropriate to add that the conditions for processing personal data under Article 5 (1) (c) of the General Regulation are guided by the principle of minimisation of data according to which information is to be proportionate, relevant and limited to the extent necessary in relation to the purpose of processing. Similarly, information is to be processed in a way that ensures appropriate security, etc. [point (f)].
58. Article 14 (1) to (4) of the General Regulation regulates the content and scope of the data processing information of the data subject by the controller in the event that the data of the controller has not been obtained from the entity itself. Paragraph 5 of that Article defines the criteria at which the previous paragraphs shall not apply. This applies in particular in cases where an entity (i.e. both for the case under consideration and as a buyer) already has information [point (a)] or is expressly provided for in European Union or Member State law for obtaining and making available information, which applies to controllers (i.e. in the case under consideration, e.g. associations) and where appropriate measures are laid down to protect the legitimate interests of the data subject.
59. According to Article 84 (2) of Act No. 257 / 2016 Coll., on Consumer Credit, the consumer is obliged to provide the seller with complete and true information to assess its creditworthiness. This "information shall, for the purpose of assessing the creditworthiness of the consumer, be subject to verification by the provider and the intermediary in a manner appropriate to the situation, if necessary, also by using independently verifiable data '. According to Article 88 (1) of the same law, the seller" shall assess the creditworthiness of the consumer on the basis of the necessary, reliable, sufficient and proportionate information obtained from the consumer and, where necessary, from a database enabling the assessment of the creditworthiness of the consumer or from other sources. The provider shall grant the consumer credit only if the outcome of the consumer credit assessment indicates that there are no reasonable doubts as to the consumer's ability to repay the consumer credit'. In accordance with paragraph 2, the seller shall assess the creditworthiness of the consumer according to the manner in which the consumer has settled the debts to date. The breach of the seller's obligation to verify the creditworthiness of the consumer results in the nullity of the contract (§ 87 (1) of Act No. 257 / 2016 Coll., on Consumer Credit). According to Article 88 (1) of the Act No. 257 / 2016 Coll., on Consumer Credit, "[o] reindeer entitled to provide consumer credit may inform each other of the data on debts that testify to consumer creditworthiness through a database managed by a legal person ', which the person processes consumer data precisely for the purpose of assessing their creditworthiness and provides access to the data of persons entitled to provide consumer credit and maintains confidentiality and protects them from abuse. According to Article 88 (2) of Act No 257 / 2016 Coll., on Consumer Credit, the provider" is obliged to treat the data obtained from the database referred to in paragraph 1 as if it were the data obtained from the consumer himself. The provider may use the consumer data obtained through the database referred to in paragraph 1 solely to evaluate the assumptions for the proper repayment of its debts [...]'. The seller must inform the consumer of the intention to search for data in the database in accordance with the law governing the protection of personal data (paragraph 3).
60. From the quoted provisions of Act No. 257 / 2016 Coll., on Consumer Credit, it is clear that the relevant regulation provides for the seller to check the creditworthiness of consumers - potential buyers. In addition to the fact that such verification may not be based solely on the assessment of information obtained directly from the consumer, the consumer must be informed, under certain conditions, of the processing and searching of the relevant data.
Interest in bothiness and non-overindebtedness of consumers
61. The Municipal Court has pointed out that the interest of sellers in the solvency of consumers is not covered by the right to the protection of property under Article 11 (1) of the Charter or under the legitimate expectation of the protection of future assets under Article 1 of the Protocol. Nor is it supposed to be a follow-up to consumer protection against excessive debt.
62. According to the Constitutional Court, in addition to those bases, it is necessary to take into account the right of each undertaking to engage in other economic activities under Article 26 (1) of the Charter, the principle of prevention (in particular, private law) and, in particular, at the sub-constitutional level of the recorded and unspecified processing of data in the public or legitimate interest of the State or of third parties. As mentioned above, protection deserves not only fundamental rights and freedoms, but also constitutional and public interests, while one must not be given unreasonably over the other. Similarly, it is necessary to take into account the legal obligation for sellers to assess consumer creditworthiness under the Consumer Protection Act and the Consumer Credit Act under the above-mentioned penalties.
63. The public (social) interest in preventing over-indebtedness of consumers as well as the similar (not) legitimate interest of third parties entering into binding legal relations as creditors cannot be seen as a one-dimensional and non-variable category. On the contrary, all considerations relating to interests and all rights must be considered consistently in a specific spatial and temporal dimension. At the same time, this means that the practice of interpreting the right to the protection of personal data is influenced by the current social and political context (finding sp. zn. The ultimate criterion of assessing the adequacy of the limitation of the fundamental right to privacy is the extent to which intervention is already a breach of the space itself for individual existence.
64. The fact that the public or legitimate interest (as a typical indefinite legal concept) in the protection of consumers from overindebtedness, i.e. the interest in protecting society and the economy from such overindebtedness, is not expressly regulated in constitutional order, does not mean that it is constitutionally meaningless. The City Court imports that inrelevance from the simple text of Article 11 (1) of the Charter and the interpretation of Article 1 of the Protocol in its main aspects of legitimate expectations. The Constitutional Court has already justified, for example, in the finding of 7.12.2005 sp. zn. IV. ÚS 412 / 04 (N 223 / 39 SbNU 353), that the right to the protection of private life is an inalienable human right, and that the restriction of that right may be made in a democratic legal state in order to protect the fundamental rights of other persons or the protection of public interest, which is in the form of a principle or value contained in constitutional order. Therefore, not only is it not a measure of the right to information self-determination by a "text" of a conflicting constitutional right, but rather its importance, and more importantly, the principles and values in the constitutional order otherwise contained and deductible from it. The text of Article 8 (2) of the Convention may also be used as a guide, according to which a State authority may intervene in the exercise of the right to privacy, inter alia, in the interests of the country's economic well-being or the protection of the rights and freedoms of others.
65. In addition, the Constitutional Court, in its judgment of 26 February 2019, sp. zn. III. ÚS 4129 / 18, pointed out that "the Supreme Court on credit agreements in consumer relations in the judgment of 25 July 2018 sp. zn. 33 In addition, Cdo 2178 / 2018 stated that the consequences of the inability to repay the loan are not only related to the debtor (consumer) but are affecting the company as a whole, as the consequences of the debtor's overindebtedness and possible insolvency affect this. The public social network often falls not only by the debtor, but by the majority of the dependants, there will be a breach of family and social relations. It is therefore up to the creditor [...] to properly examine the debtor - consumer [...] before granting the loan (assess its ability to repay the loan). The credit may then be granted to the consumer only if he has assessed the ability of the debtor to provide professional care and it is clear from his findings that the debtor will be able to repay the loan. If the debtor's creditor has not been adequately certified or has granted a loan to the debtor despite its negative findings, the credit agreement under the Supreme Court shall be void. 'Although the case under examination is not a matter of the nullity of the credit agreement, these circumstances are not meaningless and the cited underlines the constitutional dimension of the case. In fact, the social interests and obligations of third parties (vendors) laid down by law which, on the other hand, must not unduly restrict the fundamental rights of individuals cannot be excluded from constitutional protection.
66. It follows from the above that the protection of privacy is generally derived from the value of individual freedom. This is not without meaning, even taking into account the right of everyone to do business under Article 26 (1) of the Charter, because, even if systematically classified as economic, social and cultural rights, the free choice of profession (which can also be done by business) is "classical liberal freedom, which is an important part of the natural legitimate freedom of man '. [...] This site is fully formed by the fact that an individual is engaged in an activity which is the basis and role of his life and through which he also makes his contribution to the overall performance of the company (Zippelius and Würtenberger refer to judgment 1 BvL 21 / 78). However notable this wording may sound, it shows the link between the free choice of profession and the general freedom of man. The free choice of profession thus understood may in principle be carried out either by self-employed activity (right to engage in other economic activities under Article 26 (1) of the Charter) or in employment (right to acquire funds for the purposes of their living needs by work under Article 26 (3) of the Charter).'; _ Comment. Praha: Wolters Kluwer, 2012, p. 573). In addition, the Constitutional Court, in its decision of 11.9.2009, sp. zn. IV. ÚS 27 / 09 (N 200 / 54 SbNU 489), stated:" The right to free enterprise under Article 26 of the Charter, which acts in this case as an objective value affecting the interpretation of the sub-constitutional law, must be interpreted together with the principle of material rule of law enshrined in Article 1 (1) of the Constitution. In this way, that provision gives the General Court the obligation to provide for the protection of business activities where it is affected in a way contrary to the fundamental rules of fairness and good manners of competition. '
67. This, of course, does not mean that Article 26 (1) of the Charter also includes the right of entrepreneurs to keep a negative register of debtors. However, if the purpose of the constitutional right is also to enable individuals to contribute to the benefit of the whole of society, the State must also create adequate (at least minimum) guarantees against the obstruction of such efforts by third parties (e.g. consumers). This is all the more so if the rights under Article 26 of the Charter are to be sought only within the limits of the laws of the implementing acts (Article 41 (1) of the Charter). It is the consumer protection area, including the contested provision and related legislation, that is part of these guarantees. The specific purposes of the legislation depend on the legislator's decision; their legitimacy and proportionality are protected by constitutional order. Although the present case is not a matter of assessing the fairness and morals of the competition, in the latter finding the guidelines should be included in the reference framework of the review. Therefore, although consumer protection is an important and foremost aspect, at least the minimum protection of the fulfilment of the freedom in question, both by undertaking and by undertaking, cannot be lost in mind.
68. While it is the task of the public authority in this area, above all, to minimise the restrictions on this freedom, this principle cannot be absolute and protection and rights granted only to those entities which, as debtors, enter into obligations with entrepreneurs. This corresponds to the requirement of prima facie as far as possible to the privacy of individuals and to minimise the limitation of such privacy by public power, namely by the legitimate interests of other individuals, depending on the extent to which the conflicting fundamental rights can be exercised in specific situations. The interest in the solvency of consumers applying for a financial product represents the "other side of the coin" of consumer protection, which is also linked to claims against sellers, which also serve to protect society as a whole.
Article 20z (1), fourth sentence, of the Consumer Protection Act
69. In its decision-making activities, the Constitutional Court has developed a doctrine of proportionality, in which it assesses the principle of proportionality between the conflict of fundamental rights and freedoms, or their conflict with another constitutionally protected value. In doing so, care must be taken to achieve the highest possible degree of consistency between them, i.e. the optimal application of both protected values. This principle, inter alia, in the proportionality test, may also be called a ban on excessive interference with rights and freedoms. The proportionality test shall include three criteria for assessing the admissibility of the intervention. The first is the criterion of eligibility for the purpose (suitability) according to which the measure in question must at all be able to achieve the intended objective of protecting another fundamental right or public good or interest. It is also a criterion of necessity according to which the use of only the most respectful - in relation to the fundamental rights and freedoms concerned - is permitted by multiple means. The third condition of proportionality (in the narrow sense) - the damage to the fundamental right must not be disproportionate in relation to the intended objective, i.e. measures limiting fundamental human rights and freedoms, if the collision of fundamental rights or freedoms with a public interest goes beyond its negative consequences, which constitutes a public interest in these measures [see for example the findings of the Constitutional Court of 12.10.1994 sp. zn. Pl. Pl. 4 / 94 (N 46 / 2 SbNU 57; 214 / 1994 Sb.), of 13.8.2002 sp. Pl. ÚS 3 / 02 (N 105 / 27 SbNU 177; 0,05 / 2002 Sb.), of 20.6.2006 sp. ÚS 38 / 04 (N 125 / 41 SbNNU.
Intervention into the fundamental right to information self-determination
70. As regards possible interference with fundamental rights, the Constitutional Court stated in the decision of the sp. zn. Pl. ÚS 24 / 10 that the person concerned had to be provided with the more effective guarantees of constitutional protection against misuse of information obtained, the more apparent interference in the personal integrity of the individual concerned causing the exercise of another person's right of access to information. The proportionality of the intervention must be assessed by both the intensity of its impact on the personal sphere of the persons concerned and the number of those persons.
71. The preservation of the material content of the right to privacy requires that, in each individual case, the restriction of fundamental law is necessary and fair to be required in a democratic rule of law in order to fulfil the purpose of the restriction. In the context of general considerations, the Constitutional Court considers that the contested provision interferes with the right to information self-determination, as outlined above. This is due to the fact that third parties may process the consumer's personal data without his consent (cf. ECHR judgment of 26.3.1987 Leander v Sweden No 9248 / 81). This intervention must be compared to the above-indicated legitimate interests of the sellers and the companies as a whole, by considering empirical, systemic, context and value arguments (finding sp. zn.
72. The formally guaranteed right to information self-determination in this case is not maintained in its entirety and at the highest level of consideration because the consumer does not voluntarily provide his own data to a third party. Article 10 (3) of the Charter protects individuals from the unauthorised collection of data on it and not from any potential processing of such personal data. The intervention is therefore already contained in the absence of consent to the processing of data relating in particular to the repayment of loans to one of the entities that is a member of the registry manager.
Purpose
73. It can be concluded from the inclusion of the contested provision in the Consumer Protection Act and perhaps from its historical interpretation that the general purpose is consumer protection. However, taking into account the logic of the case, it can be concluded that the purpose of the contested provision is to enable the seller to make an effective assessment of the creditworthiness of consumers and to protect them, namely society and the functioning of the economy from the disproportionate overindebtedness of its members. These two purposes can stand side by side and complement each other. Where a consumer is required to give consent to the processing of data on his debts, it is simply the fact that a part of the consumer does not give such consent, or, when applying for a loan, to cover their outstanding liabilities. Similarly, it can be considered that part of the consumers would hide debts after the due date, which is the situation to which the contested provision responds. The Authority recalled, inter alia, that the purpose of the contested provision is not sufficiently specific or explicit. According to the Constitutional Court, however, the wording of the contested provision as well as the whole of Section 20of the Consumer Protection Act can be enumerated. In addition, Paragraph 20z (1) of the Consumer Protection Act is permitted by the following words: "In order to protect the rights and the rights of protected interests of sellers and consumers [...] '. Thus, part of the imported purpose is legally clear, part indirectly resulting from it.
74. If the appellants consider that the company's interest in preventing over-indebtedness of consumers, as well as the interest of sellers on their bothiness, does not constitute a reference aspect of the constitutional review, they confuse the issue of the relevance of these interests with the question of the proportionality of the intervention in the right of consumers to protect privacy. At the same time, they combine the question of the subsummability of individual or collective interests under fundamental rights under the Charter with their relevance; they therefore forget that the public or legitimate interests themselves do not have separate facts in the constitutional order and are not defined by their nature as opposed to fundamental rights (cf. MADEJ, M. Limits of Fundamental Rights in the Czech Republic. Leges: Prague, 2018, p. 142). Moreover, the Charter is not intended to define public and legitimate interests, but to define at a constitutional level the regulatory basis for protecting against undue interference with fundamental rights and freedoms in the pursuit of those interests. According to the appellants' view, public or legitimate interests based on constitutionally challenged principles and values (not expressly guaranteed rights or freedoms) would not benefit from constitutional protection. In other words, even if the specific intervention is disproportionate, it does not mean that the related public interests or the interests of entrepreneurs can no longer be compared to the fundamental rights in question for their substance.
75. The contested legislation is not unique in the European comparison. For example, the Slovak Republic, the Republic of Austria, the Netherlands or the United Kingdom have similar registers collecting personal data on the repayment of consumer debts. In those countries, it is no exception that several private companies also run registers and provide data to banks.
76. In the Republic of Austria, information on insolvency proceedings and information on small loans of natural persons are thus kept in the largest register there - Kleinkreditevidenz. This register blends data published by insolvency courts with information provided by clients of the registry operator (the largest operator is Kreditschutzverband von 1870). In addition to banks, credit insurance companies and leasing companies have access to records. Entities involved in the transmission of information import their authorisation from the Banking Act there and from Article 6 (1) (f) of the General Regulation (see above). The consumer in the Republic of Austria has similar rights to correct incorrect data as in the Czech Republic (see below). Furthermore, the company also processes the so-called alert lists, identifying data on refusal of payment or conduct in breach of the contract. Only banks have access to the alert lists, but still without consumer consent.
77. In the Netherlands, the official and largest public register is run by the Stichting Bureau Krediet Registratie, which monitors cash liabilities 3 months after maturity. In addition, there are at least 4 other private companies processing large volumes of data to evaluate consumer creditworthiness. That agency shall process data on debtors for a period of five years following the payment of the debt. Even in the Netherlands, there is a legal obligation on the seller to pay due care to prevent the granting of credit beyond the financial possibilities of the debtor. According to the Financial Supervision Act, the Seller is to obtain information on consumer godliness, from which the Personal Data Protection Office imports the legal basis for processing the data.
78. In the Slovak Republic, even non-bank companies under Section 7 of Act No. 129 / 2010 Z. z., on consumer loans and on other consumer loans and on amending and supplementing certain laws are obliged to "provide consumer credit data to at least one electronic consumer credit data register [...] '. The first sentence of Paragraph 7 (5) provides for the obligation of the banks, non-banks and their interest associations to establish at least one credit register. Therefore, the Act expressly obliges banks and non-banking companies which provide consumer credit to establish at least one common credit register, to provide legally defined data to it and to use those data to decide whether a request for or an increase in consumer credit will be approved.
79. While the legislation is fragmented in those countries and other data may be provided in the registers compared to the national legislation, they share the fact that comparable data are kept by private companies in accordance with the terms of the general regulation (see below).
80. If the company and the State could not have effective tools to enforce the interest in the economy (including, for example, the interest in reducing and preventing the number of execution procedures conducted), or if individuals did not have adequate rights to carry out their right of business effectively, and if public authorities could not create legal instruments to prevent misconduct by consumers when applying for credit, the relevant fundamental rights of the parties concerned would be virtually unlimited. In such a case, society would become defenceless against some, potentially dishonest or disrespectful actions of individuals who are accountable not only to themselves and to each other, but also to society as a whole. The problem of providing and paying back consumer credit is essential, as is the need to deal with it. In view of the above, the Constitutional Court summarises that the sentence of the fourth contested provision follows a legitimate purpose from the point of view of constitutional order.
Fitness and necessity of the measure taken
81. As part of the criterion of suitability, the Constitutional Court assesses whether the contested provision is in any way capable of achieving the intended objective of protecting another fundamental right or public good or interest. This objective has been brought to light, in particular, as a combination of individual interests for the repayment of loans granted by them and of the public interest in preventing overindebtedness of consumers, partly as protection of consumers themselves.
82. If the purpose of the contested provision is also to protect third parties and the company as a whole, the contested provision is undoubtedly capable of contributing to such protection. If the seller can better evaluate the consumer's ability to repay the loan on the basis of the information from the registry, there will be logically fewer situations where the consumer is not able to repay the debt. Therefore, individual sellers will provide less credit to insolvent consumers and their claims will be paid more widely, and in summary fewer enforcement and insolvency proceedings will be conducted against those who are no longer able or willing to repay their debts. The Constitutional Court therefore summarises that the fourth sentence of the contested provision is capable of achieving the abovementioned purpose.
83. The criterion of the need for the Constitutional Court is whether the contested provision constitutes, from the point of view of the protection of fundamental rights and freedoms, the most favourable of alternative means of achieving a constitutional and contentious objective. In the context of the criterion of necessity, it is necessary to examine whether the objective pursued could not have been achieved in a way which could have been better achieved in relation to fundamental rights and freedoms, i.e. the lesser damage causing, but equally appropriate to meet the purpose of the restriction (point B. V. ÚS 3 / 14).
84. The applicants rightly point out that the sellers can already obtain information about consumers' boldness from other sources. However, information from the insolvency or execution register, the so-called banking register of client information or the central credit register, is partly related to data on debts of a different nature or at a different stage (not) of execution than those of the databases under Section 20z of the Consumer Protection Act. In the case of an insolvency or enforcement register, information on the debts with which the debtors became insolvent or the creditors have execution degrees and enforcement proceedings have already been initiated to satisfy the claims in question. The possible finding of information from the relevant registers lacks, in part, the preventive nature to which Article 20 of the Consumer Protection Act aims, since a substantial part of the debtors so maintained are no longer able to repay their debts. In turn, the banking register of client information contains information only on debts arising from credit agreements concluded with banking entities. The central credit register then records the credit obligations of legal entities and business individuals.
85. In the judgments referred to in paragraphs 50 and 51 above, the ECHR concluded that, in accordance with Article 8: The Convention must, inter alia, be implemented in accordance with the law, which must be accessible and sufficiently predictable, i.e. expressed with a high degree of accuracy, so as to allow individuals to regulate their behaviour where necessary. The actions constituting an obvious interference with the fundamental right to private life must not then be outside any preventive or subsequent judicial control (see, for example, Case 21353 / 93 Camenzind v Switzerland [1997] ECR 21353 / 93).
86. Furthermore, the ECHR stressed, for example, in its decisions of 29 June 2006 in Weber and Saravia v Germany No 54934 / 00 or 1 July 2008 in the case of Liberty and Others v United Kingdom No 58243 / 00, that it is necessary to define clear and detailed rules governing the scope and application of such measures, to lay down minimum requirements for the length, manner in which the information and data obtained, their use, third party access and berth procedures leading to the protection of the integrity and confidentiality of data, as well as to destroy them, in such a way that individuals have adequate safeguards against the risk of their misuse and malaise. In particular, national law must ensure that the data collected are actually relevant and not excessive in relation to the purpose for which it was ensured; further to be kept in a form allowing the identification of persons during a period not exceeding the necessary level to achieve the purpose for which they were secured. Special attention must then be paid to cases where personal data are disclosed or where sensitive personal data are concerned. These requirements are considered by the Constitutional Court to be the minimum standard that the legislation must comply with in order to be considered sufficient in view of the nature of the right to information self-determination.
87. Although it is subject to review by the Constitutional Court only of the contested provision, the question of its potentially inadmissible interference with, or possible breach of, the constitutionally guaranteed fundamental rights and freedoms cannot be considered in isolation. Any obligation - on the subject, the obligation of the consumer concerned to disclose information from his or her privacy to third parties - must be assessed in the context of the entire legislation affecting the legal relations in question. Only then could it be said that it was in the contested provision that the legal basis for undue action was to be laid down and that, by removing it, a constitutional consonant would be achieved. In other words, the contested provision needs to be assessed in the context of the related legislation outlined in the general exits above.
88. Paragraph 20of the Consumer Protection Act contains in paragraphs 2 to 14 the conditions for processing and provision of data contained in the register. According to Section 20z (2) of the Consumer Protection Act, the seller is obliged to use the information obtained solely to prevent fraudulent behaviour of consumers and to assess their ability and willingness to comply with contractual obligations. Furthermore, operators and sellers must keep the data obtained secret and protect it from misuse as if they were in a contractual relationship with consumers. The legislator did not provide specific forms of confidentiality procedures to ensure the confidentiality of data by operators and sellers. However, the question is to what extent such a specific regulation can be incorporated into the law. According to paragraph 10, operators are obliged to conclude a contract with sellers, which must include arrangements for organisational technical arrangements for data security; Moreover, those situations are covered by general consumer protection, which is why the Constitutional Court does not find that aspect of the contested provision to be excessive in view of the requirement of the universality of the law.
89. According to Article 20z (3) of the Consumer Protection Act, the seller has an obligation to inform the consumer that his data may be kept in the register and, in the event of delay, to invite him to pay the debt. This precludes data from consumers without their knowledge. Moreover, the consumer must be aware of his outstanding debts due to the mandatory call from the seller. This obligation on sellers can be seen as mitigating the effects of data management without the consent of the consumer, as it allows consumers to control their accuracy from the start of the processing of the data, as well as to fight against data entered illegally. The relevant rights are granted to consumers by § 20z (9) and (14) of the Consumer Protection Act, according to which the operator is obliged to correct, or to delete incorrectly or incorrectly-managed data in order to challenge the consumer. In this way, data may only be kept in the register with the consumer's knowledge, which has sufficient tools to defend itself against unauthorised or incorrect data.
90. The basis of the regulation of the type of data processed in the register is Section 20z (4) of the Consumer Protection Act, according to which identification data can be processed in the register; details of the consumer's financial obligations under contracts between the consumer and the seller using the register; the time period to which the data relate and the seller who entered the data. This authorisation shall be supplemented by the obligation to provide, in the case of past due information, also an indication of whether the debt has been met and when it has been fulfilled. This scope can be seen as complying with the principle of data minimisation, as it is difficult to imagine the effectiveness of the registered data without any of them. At the same time, all data are relevant, clearly related to the acquisition of the smallest necessary awareness of the seller of the consumer's obligations and do not contain any indication that goes beyond this minimum necessary framework.
91. Paragraph 20z (6) of the Consumer Protection Act contains an essential indication that the seller is entitled to request information from the register only in the direct context of a particular case, and that the seller is entitled to request such information only with the consent of the consumer, if the register is registered and records of potential consumer obligations and of commitments which have not been delayed (positive register). The direct link to a particular commercial case is covered by paragraphs 7 and 8 below. The seller's request shall concern the consumer requesting the provision of a service or the purchase of a product resulting in a claim, or the consumer for which the seller already has a claim, or the person who intends to secure the consumer's debt or the person who is economically linked to such persons, if the assessment of its creditworthiness is relevant for the assessment of the creditworthiness of the above persons. The law therefore sets out, relatively precisely (in relation to the requirement for the universality of the law) the range of cases in which personal data may be requested by sellers.
92. Paragraph 20z (11) to (14) of the Consumer Protection Act also provides for the period of processing in the Register, the obligation to notify the Office's registry and the right of the consumer to extract the data in the Register. The operator may record the data for the duration of the debt and for a maximum period of three years (paragraph 11).
93. According to the summarised content of Section 20z of the Consumer Protection Act, it can be considered that the contested provision has considerable precision in its entire context, allows consumers to regulate their behaviour and meets other minimum criteria for processing personal data without the consent of the entity concerned (cf. point 86).
94. In order to assess the need for the contested provision, it is also important to take into account the legal obligations of the seller to verify the creditworthiness of the persons applying for the loan (see paragraph 59). The right of sellers to verify the creditworthiness of potential clients should be designed in such a way that the obligations of the seller imposed by the related legislation can be fulfilled. Part of consumer protection is also the penalty to the seller if he fails to sufficiently verify the creditworthiness, including in the form of the nullity of the contract. It is therefore in the interests of both sellers and companies that the instruments for detecting this creditworthiness should be as effective as possible, but without unduly limiting the fundamental rights of consumers. In other words, the need for the contested provision must be measured for its own purpose, if it is legitimate; it must be related to alternatives which are, however, equally effective, while the legislator may, within the framework of his discretion, aim at any constitutional consistent objective (cf. UNDROJEK, P. Principle of proportionality and its role in interpreting fundamental rights and freedoms. Leges: Prague, 2012, p. 150). That is to say, not to refer to it for the purpose of obtaining any information about the consumer at all (even negative in the sense that the insolvency or enforcement register does not contain the information), since in such a case the legislation in question would be "automatically 'superfluous.
95. The Constitutional Court, in its decision in sp. zn. III. ÚS 4129 / 18, stated: "The lack of a finding of the debtor's circumstances also has a public law context. The Supreme Administrative Court [...] concluded that the provider's professional care is also such that the provider does not rely on the information on the ability to repay the credit claimed by the applicant itself, but will examine the data itself (or have it documented by the applicant). If this is not the case, the loan provider commits an administrative offence [...]. The interpretation adopted by the Supreme Administrative Court is conventional in Case C-449 / 13 CA Consumer Finance SA v Ingrid Bakkaus and Others. In the judgment cited above, the Court interpreted Article 8 of Directive 2008 / 48 / EC [...] and paragraph 26 of the preamble thereto so that the credit provider has an obligation [...] to assess the creditworthiness of the debtor (consumer) on the basis of sufficient information (the information submitted by the consumer alone can only be relied on by the credit provider if there are sufficient and supported documents); This is to prevent creditors from providing loans irresponsibly, according to the Court. 'Therefore, the sellers have a duty to consistently verify the consumer's ability to repay the credit.
96. In the finding of sp. zn. III. ÚS 4129 / 18, the Constitutional Court, following the finding of 26.1.2012 sp. zn. I. ÚS 199 / 11 (N 21 / 64 SbNU 205), concluded that state power should not protect the rights of those who have not sufficiently verified the possibilities of the loan. Moreover, if they did not grant a loan with a reasonable confidence that it would be properly repaid, rather than to achieve a higher profit by implementing the original debt guarantee. It is clear that in such cases only those who have made the desired efforts should protect state power. With this attitude, the Constitutional Court agrees and notes that the case under examination represents to some extent "the other side of the coin '. The desired efforts of the sellers underpin, inter alia, the contested provision. The most consistent examination of the debtor's creditworthiness is intended to minimise cases in which consumers fall into insolvency or face enforcement or insolvency proceedings.
97. It should be noted that Section 20of the Consumer Protection Act sets out in whole the detailed conditions under which sellers may obtain information from the register without the consent of the consumer. The appellants import the lack of necessity of the contested provision from the simple possibility of obtaining certain data on consumers and from other sources and consider the scope of the data available to third parties from the register to be broad and indefinite. However, these data are not fully comparable in terms of the effectiveness of consumer creditworthiness checks. The criteria resulting from Article 20 of the Consumer Protection Act may be regarded as being highly restrictive by the prism of the requirements of the ECHR arising from the interpretation of Article 8 (2) of the Convention.
98. The Consumer Protection Act ensures that the association, on the one hand (formally), informs consumers about the processing of its personal data, provided that debt is repaid in delay, and, on the other hand, provides for the right of the operator to process the data. This law does not impose an obligation on the operator to process personal data of the consumer, but authorises it to do so. Whether this authorisation fulfils the conditions laid down in the General Regulation must be further assessed in the context of the potential legitimate interests of sellers and of the public interest in preventing overindebtedness of consumers (i.e. in the context of Article 6 (1) of the General Regulation).
99. In particular, Article 6 (1) of the General Regulation provides for the possibility of creating an adjustment which allows the processing of personal data under certain conditions without the consent of the data subject (see paragraph 57). In the light of the above purpose of the contested provision, the Constitutional Court considers that the operators are currently carrying out a task under the legislature of the public interest. At the same time, the provision of data from the register by the seller is important for the exercise of their legitimate interests. The obligation to verify closely the creditee's creditworthiness is imposed by both the seller and the Consumer Credit Act (see paragraph 59), the lack of compliance with the relevant conditions being found to be constitutionally inconsistent in the past.
100. The General Regulation thus provides that processing is lawful (not necessarily constitutionally compatible) if it is in the legitimate interest and is proportionate. It follows from Article 8 (2) of the EU Charter that personal data need not be processed with the consent of the data subject if this is done on the basis of another legitimate reason provided for by law. If the appellants had in mind that the contested provision was not compatible with the Union rules because the relevant national rules did not explicitly contain "other legitimate grounds', such an opinion cannot be taken into account. The paraphrased provision of the EU Charter cannot be interpreted as meaning that, for the purposes of constitutional review, the ground must be expressly established by law, but must be identifiable and legitimate from the point of view of constitutional order.
101. As regards the conditions under the legislation in question, the Court of Justice stated in Case C-708 / 18 TK v Asociaiția de Proprietari bloc M5A-ScaraA in its judgment of 11.12.2019 in Case C-708 / 18 TK v Asociaiția de Proprietari bloc M5A-ScaraA that the legitimate interest must justify such processing and be established and lasting at the date of processing and must not be hypothetical at that date (recital 43). He also pointed out that exceptions to the principle of personal data protection and its limitations must be made within the limits of what is absolutely necessary. The condition of the need for data processing must be examined together with the principle of minimisation of the data, according to which personal data must be "adequate, substantial and not excessive in relation to the purposes for which they are collected and / or further processed '. The balancing of rights and interests against each other in the case in question, according to the Court of Justice, depends on the specific circumstances of the individual cases in which the person or the balancing authority must take into account the importance of the rights of the data subject under Articles 7 and 8 of the EU Charter. The interests of sellers and companies to prevent overindebtedness of consumers have been outlined above, and it cannot be seen that the processing of personal data under Section 20of the Consumer Protection Act would go beyond the scope indicated by the Court. The purpose of processing is contained in the law, it is essential, the data processed are essential and necessary in terms of fulfilling the purposes of processing.
102. In the judgments in Cases C-565 / 12 and C-449 / 13, cited by the Municipal Court (paragraph 11), the Court dealt with the processing of personal data in connection with the conclusion of consumer contracts. According to these decisions, sellers are under no obligation to systematically check the truthfulness of information obtained from consumers if the documents are supported and if they are sufficient, however, depending on the circumstances of each case, the sellers may not be satisfied with such information and may consider that it is necessary to confirm further information from the consumer. In other words, the fact that vendors can only be satisfied with sufficient information provided to consumers and have no strict obligation to obtain further information does not mean that they are not allowed to seek it in their interest. In addition, in view of the obligation of the seller under Act No. 257 / 2016 Coll., on consumer credit, as amended, the penalties for its failure to comply with it and the requirements laid down in the caselaw on its compliance (cf. It is not possible to agree with the view of the municipal court that they cannot do so unless the Union law provides for an obligation for sellers to verify and search the relevant data. On the contrary, for a consistent assessment of consumer creditworthiness and compliance with the legal requirement of due diligence when granting credit, this is allowed to them, to the extent that consumers' right to privacy is adequately preserved.
103. Thus, not only is the legal regulation of consumer creditworthiness assessment not in conflict, it provides, on the contrary, for the competent bodies to process personal data under certain conditions without the consent of the consumer, that, pursuant to Article 20z (3) of the Consumer Protection Act, the seller of the data to the registry is obliged to inform the consumer of this fact.
104. The Municipal Court also contends that data from the register may be provided in relation to any potential consumer debt. It is true that energy companies and mobile operators are also members of the association. However, these areas are governed by relatively separate legislation. The customer has the right to enter into a contract with an energy supplier who is obliged to enter into a contract with him under the general and technical conditions [cf. Section 28 of Act No. 458 / 2000 Coll., on the Terms and Conditions of Business and on the Performance of Government Administration in the Energy Sector and on the amendment of certain laws (Energy Act), as amended]. After all, neither the municipal court nor the Authority has provided any case in which, as a result of the data provided by the registry, an energy supplier or mobile operator would not enter into a contract with the consumer. Therefore, it is not clear why the fact that these types of companies are members of the association itself should render the contested provision unconstitutional.
105. The content of the rights and obligations of the consumer, sellers and bodies leading the register is wider than the content of the contested provision itself. This is in the sense that the absence of consumer consent to the processing of certain of its data by law must be seen together with the complex conditions under the whole of Section 20z of the Consumer Protection Act. This is not to say that, even in its broader context, the contested provision must be consistent with the constitutional order, since even the criteria indicated above may not be sufficient from the point of view of constitutionally guaranteed fundamental rights and freedoms. It is clear, however, that, in particular, the definition of the conditions for the provision of data from the register, the defence of consumers against inaccurate or incorrect data, the condition of consumer consent to the provision of data from a positive register and the consequences of consumer objections, that is to say, the conditions corresponding to the requirements of Article 21 of the General Regulation, significantly specify the contested provisions. That is why "read" cannot be read as if consumer consent was not needed at all. On the contrary, consent under the Consumer Protection Act may only be in legally defined situations and according to quite specifically stated rules.
106. As regards the Authority's objection that the contested provision should have been part of the Consumer Credit Act, the Constitutional Court merely states that the very constitutionality of the contested provision cannot cause this. Moreover, it was stated above that the contested provision pursues a rather marginal purpose in the public interest of non-overindebtedness of consumers and the protection of consumers themselves, even if it is in the interests of both sellers and companies.
107. The Constitutional Court stresses that the restriction of the right to information self-determination must still be addressed under strict conditions. In view of the other available forms of register management and the quite extensive requirements for obtaining information, the Constitutional Court summarises that the contested provision fulfils the criterion of necessity, since the intended purpose could not, in the present situation, be achieved in a comparable manner.
Adequacy of intervention in the narrower sense
108. In particular, the proportionality test is intended to verify in the narrowest sense that their substance and meaning are being investigated in the application of legal restrictions on fundamental rights and freedoms in accordance with Article 4 (4) of the Charter. The degree of interference with the individual's right of information self-determination and its admissibility varies mainly depending on his nature, particularly sensitivity. It will be most strictly evaluated in cases where the information relates to the "most intimate personal sphere of the individual," including his or her sexuality, medical condition or physical and mental harm suffered, or if he or she lends to persons particularly vulnerable (cf. sp. zn. Therefore, the ultimate criterion of assessing the adequacy of the limitation of the fundamental right to privacy is the extent to which intervention is already a breach of the scope for individual existence.
109. The appellants may be attested to the fact that the contested provision interferes substantially with the fundamental right under Article 10 (3) of the Charter. However, it does not exclude the exercise of the right itself and, in the context of the subsequent provisions, sets out detailed criteria justifying the intervention in question. On the part of the appellants, it can also be said that the constitutionally guaranteed right to information self-determination is a prima facie stronger than the conflicting legitimate and public interests. On both sides of the measure, however, there are rights, i.e. interests of high seriousness. However, in order to assess consistently, interests contrary to the fundamental right should be considered in all relevant respects. The starting point is the text of Article 10 (3) of the Charter itself, according to which everyone has the right to protection against unauthorised collection, disclosure or other misuse of data on his or her person.
110. It follows from the quoted code and contrario that this right may be limited in a "legitimate" way. The legitimate (not a priori appropriate) way in the present case takes the form of a constitutionally challenged individual interest of sellers and the collective interest of the company in preventing overindebtedness of consumers. It is also part of the social interest of a state whose apparatus is unduly burdened by the efforts of the existing overindebtedness, for example in the form of the promoters of the execution or insolvency proceedings mentioned.
111. In the Czech Republic 4 476 069 execution proceedings against 783 053 natural persons were conducted on 22 February 2020. Of these, approximately 580 000 executions are simultaneously conducted by insolvency proceedings. A year-on-year decrease of 38 284 individuals (i.e. 4,89%), but despite the expected continuation of a slightly declining trend, this situation cannot be seen positively (see http: / / eccr.ez / admin / annex / / Statistics% 202019% 20grafika.pdf). Although the Constitutional Court does not have the objective of further evaluating the statistics outlined (for which a more precise indicative value would have to be made further empirical examination), it cannot lose sight of the simple situation in society that the legislator must face in order to prevent overindebtedness. In the face of this, it should be noted that over-indebtedness in the area of so-called consumer credit is probably a minority part of the executions, which are often carried out on originally bagging amounts, for example, for outstanding premiums, etc. On the other hand, it should be recalled that it was the issue of consumer credit that was a recent burning problem, apart from consumers themselves, for both the economy and the state apparatus. Although interest rates of some companies have often been found to be contrary to good manners, in part, these fatal commitments have also highlighted some problems in the conclusion of credit agreements for many consumers, including the ability of some consumers to make a sound and objective assessment of their debt options properly and on time.
112. According to its observations, the Office records 70 complaints against registries operators, 43 of which per association. The members of the association are 53 sellers. The complainants are allegedly kept in the registers even though they have already repaid their debts. It has been established above that the seller can only provide data from the register on consumer obligations under precise and extensive conditions. In view of the number of members of the association (sellers) and the number of their clients - consumers, it is possible to consider the complexity of the management of such a comprehensive database, both legally and in fact. It is also clear that no similarly complex system may always work perfectly and there may also be cases in which consumer data will remain registered for longer than statutory leave periods. Although such practice cannot be approved, even if the objections contained in the complaints to the Office are justified, the number of 70 complaints in relation to thousands of consumers led may not be considered enormous. Inadequate intervention would be considered in the absence of consumer protection against unauthorised processing of personal data. However, the Act gives consumers the right, in accordance with Article 16 of the General Regulation, to oppose such interference and provides for a clear obligation for the operator to correct or remove data subject to specific conditions.
113. The processing of personal data (even of a financial nature) is currently experienced by virtually everyone, almost every day and by many different entities. In most of these cases, certain (although typically few) are involved in the right to individual privacy. Part of this data is processed in the public interest, some on the basis of the legitimate interests of third parties, some on the basis of explicit consent, others without it. In the present case, the processing of personal data under the Consumer Protection Act is not excessive in the sense that it would affect the most personal sphere of consumers. This is also because, according to the law, they are informed about it in advance, data are not sensitive or published, but "only" internally processed under strict conditions. Likewise, the responsibility towards each other and the third parties, which is borne by each in the conclusion of contractual relations, cannot be disregarded.
114. Many problems with debt repayment arise from so-called consumer loans, thus raising the question of how to prevent precisely the most serious effects of outstanding debts. It seems too strict for sellers not to have a sufficient platform for a truly effective assessment of consumer creditworthiness and to rely only on information that either receives directly from consumers and cannot therefore be sufficiently verified or that the consumer is long overindebted. Otherwise, it would be a disproportionate obligation for sellers to consistently examine the creditworthiness of consumers, which is precisely a preventive function, and the implementation of which would therefore become considerably limited. Even in view of the outlined social reality, the contested provision cannot see such a serious conflict of value or such intense interference in the fundamental law as provided for in Article 10 (3) of the Charter, which, given the legitimacy of the purpose, appropriateness and necessity, could be found to be disproportionate.
115. In other countries, similar registers can be found responding to current problems in the conclusion of consumer credit agreements. Even in these registers, personal data are processed without consumer consent, sometimes even for a longer period than under Section 20of the Consumer Protection Act. Nor does the Constitutional Court consider that this period of processing is disproportionate given the duration of the obligations under the credit agreements.
116. The contested provision does not interfere with the very essence of the fundamental right to the protection of individual privacy, which is the requirement of respect for the arbitrary organisation of life, one of which is to maintain individual autonomy. Nor does it represent an intervention that would seek protection from "all-around public power." The intervention under consideration is also appropriate because personal data are not more disseminated but shared only closely for the assessment of consumer creditworthiness. They are not at all part of a sphere in which they are not relevant or in which serious consumer harm could occur.
117. The requirement for safeguards and effective protection against the misuse of registered personal data and the obligation for operators to correct or delete illegally-managed data shall also be linked to the unloaded data. In this respect, consumers have several rights. In addition to the rights arising from the general legislation on the protection of personal data, operators are required to remove from the register all data relating to the consumer on commitments which have not been delayed, pursuant to Article 20z (9) of the Consumer Protection Act. In accordance with paragraph 14, operators must then correct the data inaccurate or incorrect. The law also provides for these basic guarantees.
118. If, despite the wording of the Act, personal data of consumers are recorded illegally, the consumers concerned have the opportunity to contact the Office or the Court. After all, that is what is happening, and this procedure is also proof of that. It was not found that such errors would materially occur, nor is there any reason to believe that this would possibly be the result of the inconstitutionality of the legislation under review. In so doing, the authorities of the State, in particular the Office and the courts, may not waive the obligation of effective control of operators' practices in exercising their rights and fulfilling their obligations under the contested provision and the rules relating thereto. They shall also endeavour to prevent unauthorised or accidental access to and processing of personal data as well as any other misuse. The contested provision, which significantly but still adequately due to the importance of the objectives pursued, interferes with the constitutionally guaranteed right of consumers to information self-determination, does not deprive the State of the obligation to protect illegally processed personal data. The authorities of the State must also effectively penalise infringements and administrative offenses of operators and sellers in the event of non-compliance with the conditions for keeping and obtaining information contained in the register under extensive data protection legislation.
119. The Constitutional Court did not lose sight of the fact that, in the present case, this is a significant intervention in consumer privacy, which cannot, of course, be taken into account in a material state of law and must be carefully and carefully considered. At the same time, however, it points out that operators can only share the data processed with sellers in compliance with relatively strict and specific rules. Moreover, it is not about the disclosure of personal data, nor can the so-called sensitive personal data be shared with sellers; they are therefore not subject to review in cases which, within the limits of the right to privacy, need to be assessed most strictly.
120. For the above, it cannot be concluded that, within the meaning of Article 4 (4): The Laws of the legislature did not conserve the substance and purpose of the right to information self-determination, nor did they unduly restrict that right, nor should the restriction in question be abused for purposes other than those laid down. On the contrary, the Constitutional Court has concluded that the sentence of the fourth contested provision constitutes a serious but proportionate intervention in the constitutionally guaranteed right of protection against unauthorised collection, disclosure or other abuse of personal data, which is, inter alia, due to the number of enforcement and insolvency proceedings conducted by the legislator's constitutionally consistent response to the need for a solution to this plight social situation, conformal to Article 8 (2) of the Convention and Article 8 (2) of the EU Charter.
Article 20z (1), third sentence, of the Consumer Protection Act
121. According to a group of senators, the management of the information database would be a more efficient way of being entrusted to the seller. The provisions in force make it possible for operators who have not entered into a direct legal relationship and contact with the consumer to have information without its consent. This, according to a group of senators, can lead to the publication of consumers' right to protect privacy and personal data.
122. The Constitutional Court attaches to a group of senators that a certain interference in the fundamental law under Article 10 (3) The Charter only goes in the sense that consumer personal data are processed by a third body with which consumers are not in a direct legal relationship.
123. The purpose of the third paragraph of Paragraph 20z (1) of the Consumer Protection Act is to ensure that the register is maintained to a certain extent by an independent body. Therefore, it is reasonable if it is a person whose primary objective is not to achieve profit or is not in direct relationship with the consumers concerned. This objective is considered legitimate by the Constitutional Court in the light of the above. Given the processing of personal data, it seems safer at all to separate this activity from the commercial relations that consumers and sellers enter into together.
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Regulation Information
| Citation | The Constitutional Court found no 552 / 2020 Coll., on the application for annulment of § 20z paragraph 1 of the third and fourth sentences of Act No. 634 / 1992 Coll., on Consumer Protection, as amended by Act No. 378 / 2015 Coll. |
|---|---|
| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 23.12.2020 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
Legal Areas:
Information, Data, Data
Administrative law
The regulation text is for informational purposes only.
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