The National Court has overturned the AEPD’s sanction against Amazon for requiring certificates confirming no criminal record
The National High Court concludes that a certificate confirming the absence of a criminal record does not contain data relating to criminal convictions or offences, but rather favourable information about the data subject; consequently, it does not fall within the scope of Article 10 of the GDPR.
The Chamber adopts a strict interpretation of that article, particularly as this is a disciplinary procedure, rejecting the broad interpretation advocated by the AEPD.
It also points out that the consent given by candidates to provide a certificate of no criminal convictions is not deemed invalid due to the lack of a specific legal authorisation, as the prohibition in Article 10 of the GDPR does not apply.
Finally, the judgment finds that, in the case of Amazon Flex, the requirement for the certificate was legitimate, necessary and proportionate to ensure the security of the contracting process, taking into account the delivery drivers’ access to customers’ personal data and to deliveries at private residences.
The ruling represents a significant correction to the position maintained by the AEPD and may have a significant impact on the recruitment of staff and contractors.
However, the ruling should not be interpreted as a general authorisation to request such certificates in any context, as the AN itself emphasises the need to analyse each case in the light of the principles of necessity, proportionality and data minimisation, taking into account the specific duties of the post and the associated risks.
The judgement also acknowledges that certain requirements for criminal record certificates could be questionable from a labour law perspective, although this does not necessarily imply a breach of data protection regulations.
Furthermore, the judgment itself is handed down in a context where there are previous rulings in the field of labour law (such as the Supreme Court judgment of 12 May 2022) which had addressed this issue from a different perspective, highlighting that the matter has not yet been fully settled.
Attention will need to be paid to any future developments in case law, particularly should the judgment become final or be subject to review by the Supreme Court.