A Comparative Analysis of Anti-Discrimination and Data Protection Legislations - Discrimination and Privacy in the Information Society - page 75

nationality (the former art. 12(1) TEC), by interpreting the former in the light of
the latter (section 66 of the Huber judgment). Keeping a register like the AZR
purely for the purpose of population statistics would be disproportionate, because
anonymous data would serve that purpose equally well (section 65 and 68), and
processing non-anonymised data for the purpose of population statistics is thus
both unnecessary, in the meaning of DP , and discriminatory, in the sense of art.
12(1) TEC.
Surprisingly, when anti-discrimination considerations (section 75) are applied
independently of data protection considerations 34 , a comparable proportionality test
seems to be implied. However, in Huber the question of proportionality is not
explored, because the fight against crime “in the general sense” (section 78) is,
unlike the application of the right of residence for foreigners, not something that is
only related to foreigners. In other words, the discrimination was so blatant that the
Court did not consider it relevant to engage in a proportionality test of the measure
at stake. Nevertheless one could cautiously argue that the prohibition of arbitrariness
derived from anti-discrimination law can encompass a proportionality test: in the
aforementioned section 75, the Court considers that disproportionate differences in
treatment, based on a protected ground like nationality, qualify as arbitrary
discriminations. Only if there is a legitimate, proportionate objective for
distinguishing among German citizens and citizens of other member states,
discrimination on grounds of nationality can be allowed. Advocate General Maduro
seems to go along those lines when he states that although there is of course a
difference between German citizens and non-German Union citizens, this does not
allow for any discrimination whatsoever, because “the difference in treatment must
relate and be proportionate to the difference in [...] situations”.
Concluding, we see in the Huber case that both data protection and anti-
discrimination have the possibility to address a difference of treatment following
from the disadvantageous inclusion in a database. In DP , differential treatment is
approached through the question of legitimacy, which entails proportionality,
which in turn prohibits disproportionate differences in treatment. However, in the
case of DP the question of disproportional differential treatment is only one of the
criteria that will help determining whether a given instance of data processing is
proportional, and hence legitimate (and lawful) or not. Therefore the ' bite ' of DP
with regard to infringements will be comparatively small in relation to the more
direct approach of AD , to which the difference of treatment is the core concern.
Yet a drawback of the AD approach is that it only concerns a limited set of
protected grounds. In the Huber case the disproportionate differentiation was
viewed through the lens of an AD provision, prohibiting discrimination on one
particular forbidden ground (i.e., nationality). However, one could also imagine
that the Court, were it to be confronted with a similar case wherein the differential
treatment did not concern one of the grounds protected by AD , could link the
34 In assessing the legitimacy of the secondary use of AZR data for purposes of criminal
investigation , the Court cannot ground its decision on the DP directive because any data
related to the enforcement of criminal law are excluded from its scope (art. 3(2) DP ). See
supra , section 4.4.