| In a somewhat special case, the European Court of Justice (ECJ) had to examine whether the receipt or disclosure of contact data of co-partners of a real estate fund can be based on Article 6 (1) (f) of the GDPR. In line with its established case law, the ECJ applied its three-step test and emphasised that the criterion of legitimate interests could be interpreted broadly. Furthermore, however, the data processing must be necessary to achieve the purpose. This is not the case if – as here – a less intrusive means would be available because the data subjects could be asked before the contact data in question is disclosed. In its examination of the conflicting interests of the data subjects, the court emphasised that, due to the specific nature of the case, the data subjects could not reasonably have expected the contact data to be disclosed because this disclosure was contractually prohibited. However, as this contractual exclusion could be invalid under national case law of the highest court (order of the Federal Court of Justice (Germany) of 19 November 2019 (II ZR 263/18) and, on the contrary, a claim for the disclosure of contact data could exist in constellations such as the present one according to precisely this case law, the ECJ decided that, where applicable, Article 6(1)(c) c) GDPR should be examined as a legal basis. With reference to Recital 41, the ECJ emphasised that Article 6(1)(c) GDPR does not require a legislative act, but could also arise from case law, provided that it is clear and precise and its application is foreseeable for those subject to it in accordance with the case law of the Court of Justice and the European Court of Human Rights. This judgment is significant in practice because the question of whether consent could be requested is likely to arise more often in the context of a balancing of interests. Furthermore, Article 6(1)(c) GDPR, which by its nature is less frequently examined, at least in the private sphere, will be significantly more relevant in the future because sufficiently clear case law can also lead to its application. |