CJEU Weltimmo: establishment under EU data protection law is broad, not based solely on

Establishment: The concept of establishment must be interpreted broadly. The legal form of such establishment (e.g. branch, subsidiary etc) is not the determining factor. The formalist approach whereby organizations are considered to be established solely in the place in which they are registered is not the correct approach. There is a 3-pronged test: (i) Is there an exercise of real and effective activity — even a minimal one? (ii) Is the activity through stable arrangements? and (iii) Is personal data processed in the context of the activity? (¶41)

In the light of all the foregoing considerations, the answer to the first to sixth questions is as follows:

– Article 4(1)(a) of Directive 95/46 must be interpreted as permitting the application of the law on the protection of personal data of a Member State other than the Member State in which the controller with respect to the processing of those data is registered, in so far as that controller exercises, through stable arrangements in the territory of that Member State, a real and effective activity — even a minimal one — in the context of which that processing is carried out;

– in order to ascertain, in circumstances such as those at issue in the main proceedings, whether that is the case, the referring court may, in particular, take account of the fact (i) that the activity of the controller in respect of that processing, in the context of which that processing takes place, consists of the running of property dealing websites concerning properties situated in the territory of that Member State and written in that Member State’s language and that it is, as a consequence, mainly or entirely directed at that Member State, and (ii) that that controller has a representative in that Member State, who is responsible for recovering the debts resulting from that activity and for representing the controller in the administrative and judicial proceedings relating to the processing of the data concerned;

– by contrast, the issue of the nationality of the persons concerned by such data processing is irrelevant.