The Spanish Agency for Data Protection (henceforth AEPD) has recently released a consultation for the Bar on the legality of the Revenue System requiring certain information on tax implications of its members.
The AEPD consultation focuses on regulating the right of communicating to the revenue system, at its request, information about the billing of its members can be recorded in their files following procedures of an “account oath”, claims in or out of courts, determination of costs and their assignment.
The regulatory framework seems clar, on one hand the right of the Administration to require this type of information would come into play, with the legality of the procedure not being questioned, and the involvement and possible violation of the rights of protection of personal information of the members that may arise when information is handed over.
Establishing the rights in conflict we find that an exchange of information suggests an existence of a meeting or communication of personal information as defined by article 3.i) of Act 15/1999 of 13th December, Protection of Personal Data, as any disclosure of information of a person by someone other than the person concerned.
More specifically, the conflict is centred on the transfer of information to third parties and the principle in article 11.1 of the Data Protection Act, establishing that personal data shall only be disclosed to a third party for purposed directly relating to the legitimate functions of the assignor and the assignee with the consent of the interested. However, article 11.2 a) indicates that this consent will not be required where there is a rule with the force of law to legitimatise the transfer.
Meanwhile the fiscal framework is set by the provisions in article 94.1 of Act 58/2003, 17th December, General Tax, providing that whatever its nature the holders of State bodies, the Autonomous Communities, local entities, autonomous organisms and public companies, chambers and corporations, schools and professional associations, mutual welfare, other public bodies, including the management of social security and those who, in general, hold public office, shall by obliged to provide to the Revenue System data, reports and background information with relevance to tax, sought by general provisions or through specific requirements, and to provide them and their agents support, help and protection for the functions that they exercise.
In turn article 94.5 of the LGT adds that the transfer of personal data that is to be made to the Revenue System in accordance with the provisions in the preceding article, in the previous sections of this article or other legal rules, will not require the consent of the affected. This shall not apply the provisions found in paragraph 1 of article 21 of Act 15/1999, 13th December, Protection of Personal Data.
According to the above, the legality of the request for information by the Revenue System to the Bar implies the actual existence of a rule with the force of law that enables this type of data transfer, provided that they do the requirements established and stating, as the first of these requirements, the requested data that are tax related.
Therefore, who defines what is relevant to tax in the required information?
The Bar defines these relevant characteristics required by the Revenue System:
1. Referring to article 246.1 of the Code of Civil Procedure, in relation to costs, if the value of these costs were contested on the grounds of excessive lawyers’ fees then this shall be heard by the lawyer in question within five days, and if he does not except a reduction of fees, there will be a judicial order, or as much that is necessary for the Bar to issue a report, concluding in the first paragraph of article 246.3 that the Court Clerk, considering what has happened and the judgment given, issues a decree on maintaining pricing or, where appropriate, make any changes he deems necessary.
2. The reports and judgments issued by the Bar cannot determine the actual quantity of payments received by a professional to whom the information relates.
In conclusion, this data has no tax relevance, so it could not be considered included within the rule laid down in article 94.1 of the LGT, nor legitimise its communication to the tax authorities.
Such a conclusion is only reached with respect to the judgement that consequently the challenging of costs is made effective by the court clerk, not including deciding whether to show relevant tax in any other reports or judgments on a particular professional remuneration in any area that has been developed by the Bar or if it might show what council actually admitted.
Consequently, the transfer of data as required by the Revenue System in this present consultation would not be covered by article 94.1 of LGT, except in cases provided for those where it could be determined that the payments received by a lawyer and whose transfer, if anything, occurs independently of the person concerned or his opposition, all the while article 6.4 of the Data Protection Right excludes the exercising of the right to object to judgments of processing and transfering, which is provided for in Article 94.1 of LGT.