IPI V. ENGLEBERT (7.Nov.2013) (“ENGLEBERT”)

Right to be informed (derogation): Member States are allowed but not required to transpose into national law exceptions to the obligation to inform. (¶¶42-46, 50)

According to the order for reference, the profession of estate agent is a regulated profession in Belgium and IPI is a professional body responsible for ensuring compliance with the rules at issue through investigating and reporting breaches of those rules.

The activity of a body such as IPI corresponds to the situation referred to by the exception in Article 13(1)(d) of Directive 95/46, and is therefore capable of coming under that exception.

Since Directive 95/46 does not specify the manner in which the investigation and detection of failures to comply with the rules are carried out, it must be considered that the directive does not prevent such a professional body from having recourse to specialised investigators, such as private detectives responsible for that investigation and detection, in order to perform its duties.

It follows that, if a Member State has chosen to implement the exception provided for in Article 13(1)(d), then the professional body concerned and the private detectives acting for it may rely on it and are not subject to the obligation to inform the data subject provided for in Articles 10 and 11 of Directive 95/46.

If, on the other hand, the Member State has not provided for that exception, the data subjects must be informed of the processing of their personal data according to the detailed provisions, in particular those concerning timing, of Articles 10 and 11.

In that regard, it should be stated 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.