Personal Data in Insolvency Proceedings: The Interface between the New General Data Protection Regulation and (German) Insolvency Law

Abstract

When the General Data Protection Regulation (henceforth: GDPR) came into force, it quickly became clear that the new data protection law would strongly influence many different areas of law. This article deals with the relationship between data protection law and insolvency law, which was hardly considered before the GDPR was adopted. This relationship is particularly relevant where personal data is to be sold as asset in insolvency proceedings. As will be shown, the new data protection law imposes requirements on such data transfers which are very difficult to fulfil. The main problem is that in German law, personal data is not transferable because it is considered part of a subject’s personality. This situation is comparable to German copyright law, since the copyright itself is a non-transferable good. However, just as usage rights in copyright, the rights to use the personal data can be transferred to a third party provided that the requirements of the GDPR are satisfied. This article will comprehensively analyse under which conditions a transfer of such rights would be possible in insolvency proceedings. To create a balanced relationship between data protection law and insolvency law, the principle of proportionality is of crucial importance in this respect.