Supreme Court: production of third-party personal data must be indispensable and

Facts — A data subject initiated civil proceedings against its employer (the controller). The data subject alleged wage and trade union discrimination. In first instance, the court examining the case ordered the controller to provide the data subject with employment data regarding nine designated employees, including pay slips of the last 3 years. The controller lodged an appeal against the order with the Caen Court of Appeal (Cour d'appel de Caen), which confirmed the decision of first instance. It considered that the production of payslips was not only necessary but also the only means available to the data subject to prove the alleged discrimination. The controller then appealed the case before the Supreme Court (Cour de cassation). Holding — The Supreme Court first recognised that the right to prove a discrimination can justify the production of documents containing (third party) personal data.

Weighing this right to evidence against the right to data protection, the Supreme Court stated that the production of documents containing personal data must be indispensable to the exercise of the right to evidence and proportionate to the aim pursued. Applying the principle of data minimisation, the Supreme Court held that a Court ordering the production of such evidence must, where appropriate of its own motion, limit the production of documents to what is strictly necessary to prove discrimination. By requiring the controller to produce payslips, without limiting the data to be produced to what would be strictly necessary to the proof of discrimination, the Caen Court of Appeal therefore violated the principle of minimisation. The Court therefore overturned the decision of the Caen Court of Appeal and sent the case to the Rouen Court of Appeal (Cour d'appel de Rouen). Holding — The Supreme Court first recognised that the right to prove a discrimination can justify the production of documents containing (third party) personal data.

Weighing this right to evidence against the right to data protection, the Supreme Court stated that the production of documents containing personal data must be indispensable to the exercise of the right to evidence and proportionate to the aim pursued. Applying the principle of data minimisation, the Supreme Court held that a Court ordering the production of such evidence must, where appropriate of its own motion, limit the production of documents to what is strictly necessary to prove discrimination. By requiring the controller to produce payslips, without limiting the data to be produced to what would be strictly necessary to the proof of discrimination, the Caen Court of Appeal therefore violated the principle of minimisation. The Court therefore overturned the decision of the Caen Court of Appeal and sent the case to the Rouen Court of Appeal (Cour d'appel de Rouen). Comment — This summary focuses on the sections relevant in terms of data protection and does not include the detailed labour law reasoning.

This case is about striking a balance between the right to data protection, the right to evidence and the right to non-discrimination. One could interpret the position of the controller as an attempt to use the right to data protection to avoid having to be transparent about salaries, which could obviously lead to risk of discrimination. The controller tried to avoid having to produce the pay slips and asked the Court to overturn the ruling of the Caen Court of Appeal. The Supreme Court did overturn the disputed ruling, but did not endorse the controller's argument. On the contrary, it considered that pay slips could indeed be produced, but within the limits of data minimization.