ASOCIACION NACIONAL DE ESTABLECIMIENTOS FINANCIEROS DE CREDITO (ASNEF) AND FEDERACION DE COMERCIO ELECTRONICO Y MARKETING DIRECTO (FECEMD) V. ADMINISTRACION DEL ESTADO, 24.Nov.2011 (“ASNEF”)
Direct applicability of Directive 95/46: Whenever the provisions of a Directive appear to be unconditional and sufficiently precise,they have direct effect if the Member State has failed to implement that Directive in domestic law by the end of the prescribed period. Article 7(f) is sufficiently precise, as it states an unconditional obligation. (¶¶ 52-55)
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It must be stated that Article 7(f) of Directive 95/46 is a provision that is sufficiently precise to be relied on by an individual and applied by the national courts. Moreover, while that directive undoubtedly confers on the Member States a greater or lesser discretion in the implementation of some of its provisions, Article 7(f), for its part, states an unconditional obligation (see, by analogy, Österreichischer Rundfunk and Others, paragraph 100).
The use of the expression ‘except where’ in the actual text of Article 7(f) of Directive 95/46 is not such, by itself, as to cast doubt on the unconditional nature of that provision, within the meaning of that case-law.
That expression is intended to establish one of the two cumulative elements provided for in Article 7(f) of Directive 95/46 to which the possibility of processing personal data without the data subject’s consent is subject. As that element is defined, it does not deprive Article 7(f) of its precise and unconditional nature.
The answer to the second question is therefore that Article 7(f) of Directive 95/46 has direct effect.