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case (ECJ, 2008). The contested register is a central, nation-wide, automated
database in which all foreigners who live or have lived in Germany for more than
three months are registered. At the moment (2011) the AZR contains data about
more than 20 million individuals, both relating to asylum seekers and to foreigners
holding a German residence permit. Approximately a quarter of these data relates
to EU citizens. A wide range of officials can access the database: apart from the
German Immigration authorities and the Secret Services approximately 6.500
other public bodies (e.g. courts, social services, police) can consult it.
The facts leading to the
Huber
case began in 1996, when Mr. Huber, an Austrian
national, moved to Germany. As an EU national there was no impediment for him to
work and live in another member state but, as prescribed by the AZR law, his
personal data had to be processed in the AZR. In 2000 Mr. Huber contested the
presence of his data in the database as discriminatory and requested their deletion: a
register like the AZR does not exist for German nationals and the AZR data are also
subject to secondary use for purposes of criminal investigation and population
statistics. In the legal proceedings that followed, the national judge felt compelled to
pose several preliminary questions to the European Court of Justice (ECJ). Before
the Court, he questioned the compatibility of such a database with the prohibition of
nationality-based discrimination among Union citizens, and its legitimacy and
necessity from the point of view of data protection. Second, the question was put
forth as to whether the secondary use fell within the scope of the Data Protection
Directive. In its ruling, the ECJ stated that the use of a central register like the AZR
can be legitimate in principle, but only in as far as it is necessary to support
authorities in a more effective application of legislation on the right of residence,
and personal data should not be stored for other purposes, such as criminal
investigations and the creation of population statistics (§§58-59). For the latter
purpose anonymized data should be used. The ECJ referred the case back to the
national court (Higher Administrative Court for the State of North Rhine-Westphalia
24 June 2009), which decided that in the case of Mr. Huber the storage of data in the
AZR was legitimate.
1
Most interesting, for us, is the question concerning the legal concepts the ECJ
used to address the issues at stake. Whereas contested storage of data in databases
is normally addressed in terms of privacy and data protection, it appears that the
issue of discrimination is at the core of this case, and that the Court established a
very interesting link between data protection and non-discrimination. Indeed, the
Court addressed the issue of the presence of a non-national in a database for
secondary purposes of crime fighting, from the perspective of discrimination (and
thus not solely data protection, §§ 78-79).
2
1
According to the authorities responsible for the AZR, Huber's data are necessary for the
application of the law concerning his right of residence on German territory and are only
used for this purpose. Based on this statement the national judge (Higher Administrative
Court for the State of North Rhine-Westphalia, 24 June 2009) rejected the request to
remove Huber's data from the AZR, where they are probably still kept until present day.
2
Advocate General Poiares Maduro (
Opinion Huber
, C-524/06, 2008, §§ 5 and 21) reached
the same conclusion by stating that although the purpose of crime fighting is
prima facie
legitimate, it does not justify such a difference in treatment with regard to the processing of
personal data, which, ultimately, casts a “unpleasant shadow” over non-national EU citizens.
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