UHL v. THE CZECH REPUBLIC
Inadmissible
André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Karel Jungwiert;Paul Lemmens
1. The applicant, Mr Pavel Uhl, is a Slovak and Czech national, who was born in 1975 and lives in Prague. 2. In 2008 the City of Prague started issuing a multifunctional smart card called “Opencard” for Prague residents and visitors. It can be used for numerous services offered by the City or other providers, including the Prague public transport system. 3. There were two kinds of Opencard: ordinary or anonymous. An ordinary card is free of charge and anybody can apply by completing an application form that includes personal details such as name, date of birth, place of residence, email address, telephone number and a photo. Applicants must also sign a consent form on the processing of personal details and provision of information in which they consent to the further processing of the personal data from the application form and from using the card by both the City of Prague and any provider of a service which the applicant would use in the future with the Opencard system. Withdrawal of consent by the applicant results in suspension of the card’s use for services. An anonymous card without any personal identification information costs 200 Czech korunas (CZK) (8 euros (EUR)) but its use is limited to certain services. 4. From 2009 an Opencard could be used as a public transport pass. A yearly pass that could be downloaded onto the card cost CZK 4,750 (EUR 190). Those without an Opencard could not buy a yearly pass but instead could buy four three-monthly passes, which together cost CZK 5,920 (EUR 237). 5. On 16 November 2010 the Office for Personal Data Protection concluded its investigation into the Opencard system and found that the City of Prague had not adequately informed users of the future processing of their personal data and that they were therefore in violation of the Personal Data Protection Act (no. 101/2000). The Office also reiterated its previous opinion that there should be an alternative way to access the services for those not wishing to use an Opencard. It also ordered the City of Prague to offer each Opencard user the possibility of using a card without the necessity of consenting to further processing of his or her personal data. 6. As a result the City of Prague introduced in December 2011 a third type of Opencard, which is personal. Personal data are printed on the card but not stored or further processed. Adults holding this Opencard can buy long-term passes for public transport under the same conditions as holders of Opencards who gave consent to the processing of their personal details. This new type of card costs CZK 250 (EUR 10). 7. The current price (from 1 July 2011) of a yearly pass for Prague public transport is CZK 4,750 (EUR 190) for holders of both types of personal Opencard and CZK 6,100 (EUR 244) for holders of an anonymous Opencard or for those without an Opencard. 8. The applicant did not want to provide his personal details to the City of Prague and consent to processing, and therefore did not apply for an Opencard. 9. On 8 December 2008 he asked the Prague Public Transport Company (a joint-stock company 100% owned by the City of Prague) whether he could buy a yearly pass for the same price as users of the Opencard system. He explained that he did not wish to consent to the processing of his personal data. As he received no reply he bought four consecutive threemonth passes. 10. On 13 October 2009 he requested the Public Transport Company to reimburse him CZK 1,170 (EUR 47), corresponding to the difference between the price of a year pass and the price he had to pay for the four three-month passes. Having received no reply, the applicant brought civil proceedings for unjust enrichment. 11. On 30 June 2010 the Prague 9 District Court rejected this claim. It held that the income from fares was further redistributed and thus the defendant was not its only receiver and was therefore not responsible for any loss suffered by the applicant. No appeal lay against that decision. 12. The applicant lodged a constitutional appeal alleging a violation of his right to privacy and fair trial. He argued that the brief judgment of the District Court was beyond any legal logic and in effect lacked any reasoning. He further maintained that there was no other remedy in the domestic law to protect him from violations of his private life and that he could only claim compensation for the financial loss he had sustained as a result of refusing to give his personal details. 13. On 16 June 2011 the Constitutional Court dismissed the applicant’s constitutional appeal as manifestly ill-founded. It held that the subject matter of the proceedings was only CZK 1,170 and, applying the de minimis non curat praetor rule, there could be an interference with fundamental rights only exceptionally in such instances. It did not find any special circumstances in the present case that would require it to hold otherwise. It added that it was obvious that the applicant’s primary concern was not unjust enrichment but protection of his personal data; however, an action for unjust enrichment was not a means to protect those rights.