Judging the Charter

The Charter in judicial practise with a special focus on the case of protection of refugees and asylum seekers

YS and M, S

Case Number: Joined cases C-141/12 and C-372/12

Relevance of Decision

The case clarified what rights do asylum-seekers have with respect to the data protection law.  However, the case could also have broader relevance for any case which involves access to documents in the context of administrative procedures.

The Court also elaborated on the right to good administration, which it refers to as general principle of EU law.

Facts of the case

The joined cases concerned three third country nationals who applied for lawful residence in the Netherlands and sought access under the Data Protection Directive 95/46 to an official administrative document (referred to as minute) in relation to the decisions on their applications. The document in questioned contained information about the relevant case officer of the Dutch Immigration and Naturalisation Service, personal data of the applicant, applicable legal provisions and a legal analysis.

Y.S. requested a copy of the document following the refusal of his application for a residence permit under asylum law. Y.S. challenged the refusal of the Minister to disclose a copy of the document in the Dutch courts which referred five questions to the CJEU.

M and S were both granted residency but were not given reasons. The refusal of their requests for access to the relevant document was annulled by two Dutch courts. The Minister appealed against this which also led to a number of questions being referred to the CJEU. 

Legal Questions

The CJEU was asked, inter alia the following questions related to the Charter:

  • “[…] whether Article 8(2) of the Charter must be interpreted as meaning that the applicant for a residence permit has a right of access to data concerning him which are in the minute and, if so, whether that right to access implies that the competent authorities must provide him with a copy of that minute or whether it is sufficient for them to send him a full summary of those data in an intelligible form” (para.50).
  • “[…] whether Article 41(2)(b) of the Charter must be interpreted as meaning that the applicant for a residence permit may rely against national authorities on the right of access to the file provided for in that provision and, if so, what is the scope of the phrase ‘while respecting the legitimate interests of confidentiality’ in decision-making within the meaning of that provision” (para. 61).

Court Findings

The Court found that only some data contained in the minute can be considered “personal data” within the meaning of Directive 95/46. For example, the legal analysis contained within the minute does not itself meet this definition. Consequently, the right of access which the applicant may rely on under Article 8(2) of the Charter relates solely to those data that meet the definition of “personal data” provided in the directive.

The CJEU further held that, in order to comply with the Article 8 Charter, the competent authority is not required to provide the applicant with a copy of the minute - it suffices to provide him with a full summary of the personal data concerning him in an intelligible form.

The CJEU found that Article 41(2) (b) of the Charter could not be relied on by applicants for a residence permit against the national authorities as it is addressed not to the Member States but solely to the institutions, bodies, offices and agencies of the European Union.

The Court confirmed that the right to good administration, enshrined in Article 41, reflects a general principle of EU law but noted that the referring courts did not seek and interpretation of this general principle.