Private Detectives, Estate Agents and Data Protection in the CJEU

Belgium has rules on who may act as an estate agent. Mr Englebert (disappointingly, not Humperdink) was such an estate agent. The professional regulatory body of estate agents (the IPI) applied to the local court to have Mr Englebert struck off the list of estate agents, based in large part on information obtained about him from private detectives. The allegations are not recorded in the judgment of the Court of Justice, but one suspects that the underlying facts are not causing Raymond Chandler to turn in his grave in disappointment at the plot he failed to think up.

The domestic court considered the suggestion that requiring the data subject to be informed of the detective’s investigation in advance or, where the data is collected from third parties, at the time of undertaking the recording of the data at issue, would make it impossible for a private detective to carry on his activities under Articles 10 and 11 of the Data Protection Directive (Directive 95/46/EC). The Tribunal de commerce de Charleroi was uncertain whether, by not extending to private detectives the exceptions to the obligation to inform which apply to other professional categories or bodies working in the public interest (under Article 13 of the Directive), the domestic law might give rise to unequal treatment contrary to the Constitution. The Constitutional Court referred to the CJEU the question whether Directive 95/46 is “to be interpreted as meaning that it leaves the Member States free to choose whether or not to provide for an exception to the immediate obligation to inform set out in Article 11(1) if this is necessary in order to protect the rights and freedoms of others”.

In Case C‑473/12 Institut professionnel des agents immobiliers v Englebert (judgement of 7 November 2013) the Third Chamber of the CJEU ruled that Article 13(1) of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data must be interpreted as meaning that Member States have no obligation, but have the option, to transpose into their national law one or more of the exceptions which it lays down to the obligation to inform data subjects of the processing of their personal data.

The activity of a private detective acting for a professional body in order to investigate breaches of ethics of a regulated profession, in this case that of estate agent, is covered by the exception in Article 13(1)(d) of Directive 95/46 (which provides an exemption in terms for “the prevention, investigation, detection and prosecution of criminal offences, or of breaches of ethics for regulated professions”).

It is for the Member States to decide whether they consider it necessary to provide, in their legislation for the exception laid down in Article 13(1)(d) of Directive 95/46 in favour of professional bodies such as IPI, acting directly or with the help of private detectives. It is open to them to take the view that those professional bodies and the private detectives acting for them have sufficient means, notwithstanding the application of Articles 10 and 11 of that directive, of detecting the breaches of ethics at issue, so that it is not necessary for that exception to be implemented in order for those bodies to be able to carry out their duty of ensuring compliance with the rules (see at [48]).

The CJEU also confirmed that the rules on access to a regulated profession form part of the rules of professional ethics. It follows that investigations concerning the acts of persons who breach those rules by passing themselves off as estate agents are covered by the exception in Article 13(1)(d) of Directive 95/46 (see at [50]).

The CJEU did not itself answer whether it amounted to unequal treatment for Belgian law not to have applied the Article 13 exemptions to private detectives. The effect of the judgment was that Belgian was entitled – although not obliged – to apply the exemption from the duty to inform under Article 11 to private detectives if it chose to do so.

Christopher Knight