A Comparative Analysis of Anti-Discrimination and Data Protection Legislations - Discrimination and Privacy in the Information Society - page 76

provisions from art. 6 and 7 DP to the general principle of equal treatment. 35 Even
though such proportionality assessment would be marginal and lenient -especially
in comparison with the protection granted by the AD on protected grounds!-(cf.
previous paragraph), what we refer to as the “art. 6 DP + general equality”-route
could be a useful tool to supplement any too strict limitations in the scope of AD . 36
b. Test-Achats v. Council (2011), discrimination based on statistical profiling
A second situation of possible overlap between DP and AD in the field of data
mining and profiling can occur when a differentiation is made within a database,
resulting from an analysis of the data. Often such analysis will involve statistical
profiling. At present many cases in this vein take place in the field of insurance. In
such instances (De Hert et al. 2007) data protection may give the data subject
certain subjective rights (cf., supra 4.4). However, it is contested whether the use
of data that are not derived from the data subject but that are applied to him or her,
can be considered as personal data as defined within the Data Protection Directive.
In Opinion 4/2007 , the Article 29 Working Party 37 ( WP 29) has answered this
question affirmatively:
“Also a purpose element can be responsible for the fact that information
'relates' to a certain person. That purpose element can be considered to
exist when the data are used or are likely to be used, taking into account
all the circumstances surrounding the precise case, with the purpose to
evaluate, treat in a certain way or influence the status or behaviour of an
individual”.
When a statistical profile functions as the basis for unequal treatment of similar
cases, considerations of anti-discrimination can also play a role (Gandy 2008,
2009). The fact that a differentiation in treatment is not arbitrary but based on
reliable statistics does not necessarily exclude it from the category of prohibited
discriminations (Rüegger 2007). In Lindorfer (ECJ, C-227/04, 11 September
2007) Advocate-General Sharpston stated:
“[i]n order to see such discrimination [based on sex] in perspective, it
might be helpful to imagine a situation in which (as is perfectly
plausible) statistics might show that a member of one ethnic group lived
on average longer than those of another. To take those differences into
account when determining the correlation between contributions and
35 For the general principle of equal treatment see supra , cf. 4.3. For the link between this
principle and art. 6 and 7 of DP , see supra , previous paragraph.
36 For instance, certain companies take some credit decisions based upon whether a person
has a contract for a mobile phone or not, or whether a person is surfing the Internet at
three a.m. or not, see http://www.economist.com/node/18396166. In these cases, the
differences of treatment are based upon grounds that are not protected by anti-
discrimination legislation.
37 The Opinions of WP 29 are not binding. If the issue ever became the matter of dispute in
a real case, the court could interpret the notion of personal data differently.