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Path: Home Page > Main menu > Positions > Position No. 4/2004 - Interpretation of application of a part of the Act No. 133/2000 Coll., on Register of Population and Birth Numbers, and on Amendments of Certain Acts (Register of Population Act), as amended

 

Position No. 4/2004 - Interpretation of application of a part of the Act No. 133/2000 Coll., on Register of Population and Birth Numbers, and on Amendments of Certain Acts (Register of Population Act), as amended

 
 
 

The following material has been prepared in co-operation with the Czech Ministry of the Interior.

July 2004

Act No. 133/2000 Coll., on Register of Population and Birth Numbers, and on Amendments of Certain Acts (Register of Population Act) as amended by the Act No. 53/2004 Coll., Amending Several Acts Related to Issues of Register of Population (hereinafter referred to as “Act”), with effect from 1 April 2004, brought a number of changes. One of them is the laying down of new rules for the disposal of birth number. The law has entrusted the Office for Personal Data Protection (hereinafter referred to as “Office”) with a new competence, namely to impose sanctions for “other administrative torts” (not included in “offences”) in case of unauthorised disposal or utilization of a birth number. A birth number is an identifier assigned to any natural person meeting the conditions relating to its assignment provided by the Act. It is unique for each person registered in the register of population. In relation to Act No. 101/2000 Coll., on the Protection of Personal Data, as amended (hereinafter referred to as “Personal Data Protection Act”), it is a personal data whose processing is limited by the provisions of a special Act.

The basic provision is Article 13(7) of the Act1, which grants the bearer of the birth number (or his/her legal representative) the exclusive right to decide on its “use” (particularly for his or her own needs), and on its “utilization” (by other subjects).

Article 13(7) refers to Article 13c(1) of the Act, which provides ways and means of utilization of the birth number. In accordance with Article 13c(1)(a) it may be used by the subjects listed in the said provision, i.e. ministries and other administrative authorities, bodies authorized with the exercise of state administration, courts when acting within their jurisdiction defined by law, and notaries in administering the Central Register of Testaments. The list also includes court distrainers in cases where Article 28 of Act No. 120/2001 Coll., on Court Distrainers, as amended, entrusts them with the exercise of the executive power of the court. The category will further include municipal bodies upon exercising delegated competence but not upon exercising of their autonomous competence. When acting within the sphere of their autonomous competence, the municipal bodies in case of utilization of birth number shall follow the provisions of Article 13c(1)(b), or Article 13c(1)(c) of the Act.

Since the authorities listed in Article 13c(1)(a) must exercise their powers in accordance with the law, observe other regulations related to their sphere of authority and may act only for what the law authorizes them, they are obliged to enable bearer to do the choice of the identification data whenever the Act enables the selection to use as an identification data the birth number or other personal data. There are numerous laws requiring for recognizing a right, application or other act that natural person must identify himself or herself not only by name, surname and home address, but also by his/her date of birth or birth number. The wording of the individual laws varies, but the number of combinations is limited. Either the law requires both data, or it uses alternative wording, e.g. “date of birth or birth number” etc. In accordance with Article 2(3) and 2(4) of the Constitution of the Czech Republic and Article 2 and 3 of the Charter of Fundamental Rights and Freedoms, nobody may be forced to do what the law does not command. Respectively, the state power may be applied only in cases, within limits and by methods provided by law. With regard to this constitutional principle no natural person may be forced to identify him or herself by a birth number, if the law does not impose such obligation (i.e. if it is the case of alternating choice between the birth number and other personal data). The authority or institution in question is obliged to inform the birth number bearer on the possibility of choice in accordance with Article 11 of the Personal Data Protection Act.

Under Article 13c(1)(b) of the Act, other bodies, institutions or persons may also utilize the personal identification number, if they are authorised for it by a special law. The persons or institutions in question are admittedly the Police of the Czech Republic, the State Prosecution Office, but also a number of private legal persons that pursue their activities or keep registers and files pursuant to a special Act (banks, insurance companies, telecommunication operators, health care establishments, public corporations – e.g. various professional associations, health insurance companies etc.).

If the special Act provides a choice among data (e.g. by wording “date of birth or birth number”), it again depends on the birth number bearer which of the data mentioned by the special Act he or she will provide (e.g. Article 41c(3)(a) of Act No. 21/1992 Coll., on Banks, as amended, or Article 1(3)(a) of Act No. 61/1996 Coll., on some Measures Preventing the Legalisation of Proceeds from Crime, as amended). In these cases, too, the persons utilizing a birth numbers may not impose upon the birth number bearer their conviction that they “cannot dispense with the birth number”.

In the practical application of both Article 13c(1)(a) and Article 13c(1)(b), in the case of “given option” when the authority, institution or person ex lege must have one of the data, i.e. the birth number bearer have not alternative of option to decide on nondisclosure at least one of the two identifiers mentioned in the relevant special law. Both situations clearly presuppose the existence of a corresponding legal regulation and legal limits for the utilization of birth numbers.

The last limitation or authorization is the utilization of the birth number with the consent of its bearer or his/her legal guardian (Article 13c(1)(c) of the Act). The consent pursuant to this provision should be understood as a free and informed manifestation of will of the bearer with intention to express agreement with the utilization of the birth number.

The scheme “other administrative delicts” in Article 17e of the Act is constructed as follows: “unauthorized use of a birth number” (Article 13(7) of the Act), i.e. a single instance of infringement of the bearer’s exclusive right to decide on the use of the birth number is penalized by lower penalty, by a fine up to CZK 1 million. On the other hand, “system failures” are penalized by much higher penalty (by a fine up to CZK 10 million). The latter sanction may be imposed on any legal person or any natural person - entrepreneur that repeatedly make unauthorized utilization of birth numbers in contradiction with Article 13c(1) of the Act. “Unauthorized utilization” implies that the legal or natural person is either different from those listed in Article 13c(1)(a) and 13c(1)(b), or the utilization of the birth numbers is carried out without the consent of the birth number bearers (there may certainly occur various combinations of “unauthorized use”).

The lawmaker balanced the radical change in the “customary” handling of birth numbers by a rather long interim period before the coming into effect of the Act. In this period the existing practice of birth number utilization, contrary to the provisions of the Act, is not subject to any penalties.2 However, even during the interim period such use of birth numbers may be considered as having exceeded the necessary extent of personal data processing. As a use not corresponding to the purpose of the processing under the Personal Data Protection Act it may even be penalized (it could be qualified as a utilization exceeding the necessary extent of personal data processing even before the coming into effect of Act No. 53/2004 Coll.). Accordingly, those persons (legal and physical) who may utilize the birth numbers within the meaning of Article 13c in the pursuit of their activity may continue to utilize the birth numbers acquired before the coming into effect of the Act as before. However, concurrently is in force that any newly acquired birth number that would be utilized after the coming into effect of the Act is subject to the new legal provisions and limits, regardless of whether the registries and files concerned were already existed before the coming into effect of the Act, or whether they were newly created afterwards. Legal and physical persons that in the past utilized of (i.e. processed) birth numbers in the pursuit of their activities and do not fall within any of the categories defined in Article 13c must at the latest by the end of the interim period bring their processing into accordance with the provisions of Article 13c of the Act. In most cases the question will be to obtain the consent of the birth number bearer, but aforementioned must be observed (i.e. refrain from unduly influencing the bearer’s own free choice). Concurrently, here again is in force that any newly acquired birth number that would be utilized after the coming into effect of the Act is subject to the new legal provisions and limits, regardless of whether the registries and files concerned were already existed before the coming into effect of the Act, or whether they were (or will be) newly created afterwards.

Czech law also contains many by-laws that set conditions for the use of birth number. When Act No. 53/2004 Coll. came into effect, in many cases the provisions on the use of birth numbers in the aforementioned by-laws became contrary to the Act.

By-laws regulating utilization of birth number must be judged separately in each case in respect of accordance with applicable Acts. In the Czech system of law are by-laws where, in the absence of exact provisions in statutory law, the consent of the bearer of birth number may be assumed. However, there are also by-laws on utilization of birth numbers application of which in accordance with statutory law is practically out of the question. In the course of judging by-laws, the Office for Personal Data Protection must adopt an individual approach to each of the regulations; in some cases it will be necessary to initiate legislative changes.

The Office realizes that mainly practice, but also established case law may lead to changes in the application of the data protection rules, the more with consciousness of that lawful intervention to the established practices is, indeed, great and might not always be rightly understood. The Office publishes this position in particular to inform on basic principles that will apply in the exercise of its new powers.


Note: Information on the new powers of the Office for Personal Data Protection in relation to birth number processing was published in the Journal No. 31 of the Office under the heading Announcements of the Office. It also contained reference to the subsequent publication of the Office’s position on the application of the amended Act No. 133/2000 Coll., on Register of Population and Birth Numbers, and on amendments to certain Acts (the Register of Population Act).



1 The individual to whom was assigned a birth number (hereinafter referred to as “bearer”) or his/her legal guardian, are the persons authorized exclusively to use the number or decide on its utilization within the limits set by law. Otherwise the personal identification number may be used only in cases stipulated in Article 13c of the Act.

2 Legal persons and individuals that, until the coming into effect of the present Act, have been making use of birth numbers in the performance of their tasks or in the pursuit of their (business) activities and do not fall within any of the categories defined in Article 13c must demonstrably remove the birth numbers from information systems, registries or other results of data processing administered by them by 31 December 2005. Persons making use of birth numbers prior to this date are not guilty of unauthorized use.

 

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