ECJ: Supervisory authorities must be completely independent

By Sophie Mosca

The EU Court of Justice validated the principle of the independence of the authorities charged with guaranteeing the protection of personal data in Europe in a judgement handed down, on 9 March, against Germany for subjecting these authorities to state scrutiny (Case C-518/07 Commission v Germany). The court endorsed the position of the European Commission, which brought the action against Germany for its failure to apply correctly Directive 95/46/EC on the protection of individuals with regard to the processing of personal data and the free movement of such data (Directive of the Parliament and Council, of 25 October 1995) by making the authority responsible for ensuring compliance with data protection provisions subject to scrutiny by the German Länder, ie a public authority.

Directive 95/46 requires that such authorities exercise their powers with “complete independence,” an expression the Commission interprets in the broad sense. Germany applied a narrower interpretation, arguing that the directive requires only the functional independence of the supervisory authorities, who must not be exposed to outside influence. It claimed that the scrutiny exercised in the German Länder does not constitute an outside influence but rather the administration’s internal monitoring mechanism, which is not in breach of the directive.

The court first identified the scope of the requirement of independence of the supervisory authorities, explaining that as a key element of data protection, they must enjoy independence that enables them to act without influence by the supervised bodies, but also without any direct or indirect external influence that could call into question the performance by those authorities of their task consisting of establishing a fair balance between the protection of the right to privacy and the free movement of personal data.

The court considers that the scrutiny exercised by the Länder is incompatible with the requirement of independence set by the directive. It also rejected Germany’s argument that the Commission’s position would lead in its case to a violation of the principles of democracy, conferred powers, subsidiarity and proportionality. The judges held that granting these supervisory authorities complete independence from political authorities does not deprive them of their democratic legitimacy nor does it violate conferred powers or exceed what is necessary to achieve the objectives of the EC Treaty.

The Commission welcomes this first ruling in this field, noting that Commissioner Viviane Reding has made the independence of supervisory authorities a priority.

Source: Europolitics.
http://www.europolitics.info/sectorial-policies/ecj-supervisory-authorities-must-be-completely-independent-art265573-16.html