Deletion of documents published with the RCS – Recent Luxembourg case law

Luxembourg

Legal proceedings were initiated in front of the Luxembourg district court by a public limited liability company (société anonyme), seeking the deletion of bankruptcy filings made with the Luxembourg Trade and Companies Register (hereinafter "RCSL"). The company had been declared bankrupt by judgment of the Luxembourg district court and such court decision had been filed and published with the RCSL. Further to its opposition and to the payment of its debts with the tax administration, the bankruptcy was rescinded and the decision in this respect was also filed and published with the RCSL by extract.

The claimant summoned the Luxembourg Business Registers economic interest group (hereinafter "LBR") before the Luxembourg district court, to determine LBR to withdraw the aforementioned filings from the claimant’s file with the RCSL.

The claimant asserted to be prejudiced by the filings with the RCSL, since any person consulting its file would be informed of this bankruptcy procedure. The claimant invoked the data protection Regulation[1] (hereinafter "GDPR") and relevant case law of the Court of Justice of the European Union ("CJUE") to conclude that there is a “right to be forgotten” and a right to delisting, as the publications with the RCSL would infringe its privacy.

LBR requested that the claim be rejected, claiming that the filings were correctly performed, in application of the law. The regularization by the claimant of its situation would not justify the annulment of regularly made filings. Regarding the request based on the “right to be forgotten”, LBR argued that the GDPR prescribing such a right under certain conditions is only applicable to natural persons.

The Luxembourg district court declared the claim unfounded. The court reminded that under Luxembourg law any form or document that has been filed may only be modified or reversed on the basis of a court order issuing an injunction to the RCSL.

The court held that the provisions were correctly applied by the RCSL manager and that an annulment of a filing may only be ordered in the event that a document was filed by error. However, that is not the case in the present case and the filings required by law were not made by error and, therefore, no cancellation of the filings may be obtained.

As for the claim based on the “right to be forgotten” and to be delisted, the judges found that Article 1 of the GDPR restricts its scope to the protection of the data of natural persons.

The claimant appealed this judgment but the court of appeal agreed with the reasoning of the district court judges, who held that the annulment of a filing may only be ordered in the event that a document has been erroneously filed. Given that the claimant was negligent in the management of its affairs, it cannot reasonably claim that the bankruptcy judgment was filed in error, even in the broad sense of the term.

The court of appeal also stated that the legal publicity of a company's main legal and financial documents is a matter of public policy and it is in the public interest to ensure the compliance with various essential operating criteria of the RCSL, such as the accuracy, completeness and updating of data. The court reminded that creditors and, in general, third parties who contract with a commercial company have a legitimate interest in having precise and correct information on the evolution of the social life of their co-contractor.

Finally, the court ruled that the claimant failed to prove that the “right to be forgotten” is a general legal principle, applicable to entities and that it shall not prevail over the legitimate interest of third parties.

The decision highlights the basis for requiring the deletion of RCSL filings and the limits of the application of the “right to be forgotten” for legal entities.

For additional information in this respect, please contact our specialists.


[1] Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC.