CONSENT OF THE DATA SUBJECT AND RIGHTFUL INTERFERENCE IN ONE’S RIGHT TO PROTECTION OF PERSONAL DATA

Even if the national court saw from the outset that publishing the applicants’

names on an internet site breaches their right to protection of personal data, it was not convinced that it was unjustified, seeing that the applicants had consented to publication. The CJEU also examined the significance of this so-called consent.

The CJEU noted that the applicants had indeed foreseen that their personal data would be published, but also saw that the applicants had merely stated that they were aware of the requirements to publish the data. Thus, publication was not based on the of the consent of data subjects but on the EU legislation.⁶⁴³

Once it was clear that there was interference in their privacy, the CJEU moved on to one of the key issues of the case; it had to examine whether interference in one’s right to the protection of personal data could be justified. This right is guaranteed

638 Joined cases C-92/09 and C-93/09 Volker und Markus Schecke GbR and Hartmut Eifert v Land Hessen, ECLI:EU:C:2010:662, paras 25, 53–54.

639 Directive 95/46/EC of the European Parliament and the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (OJ L 281, 23.11.1995, p. 31–50).

640 Joined cases C-92/09 and C-93/09 Volker und Markus Schecke GbR and Hartmut Eifert v Land Hessen, ECLI:EU:C:2010:662, para 58.

641 According to Article 8, Member States shall prohibit the processing of personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, trade-union membership and the processing of data concerning health or sex life.

642 Joined cases C-465/00, C-138/01 and C-139/01 Österreichischer Rundfunk and Others, ECLI:EU:C:2003:294.

643 Joined cases C-92/09 and C-93/09 Volker und Markus Schecke GbR and Hartmut Eifert v Land Hessen, ECLI:EU:C:2010:662, paras 61–64.

by the Charter of Fundamental Rights.⁶⁴⁴ However, it is not an absolute right,⁶⁴⁵ and must therefore be balanced against other rights and, as noted by the CJEU,

“in relation to its function in society”.⁶⁴⁶ The referring national court was of the view that increased transparency, which was the rationale behind the obligation to publish the data, would not in fact enhance prevention of irregularities. It saw that the aim pursued by this legislation was sufficiently protected by other means as there were already control mechanisms in place for this purpose. Thus, the further transparency attained by the Regulation would not bring significant added value to control over the expenditure of public funds, particularly taking the principle of proportionality into consideration.⁶⁴⁷

The dimensions of the underlying principles establishing these rights are of great interest in seeking the correct balance between these rights.⁶⁴⁸ It was not clear that the provisions which were challenged contradicted Articles 7 and 8 of the Charter. These articles and the underlying principles had to be assessed in light of the objective of transparency. In this case, this balance had initially been carried out by the legislator and now the Court of Justice took its turn. First, the Court of Justice noted that the internet site containing information on the beneficiaries’

names and the exact amounts they received did indeed interfere with their private lives in the sense of Article 7 and fell under the protection of personal data in the sense of Article 8 of the Charter⁶⁴⁹. However, as noted above, one’s right to the protection personal data is not absolute. It was therefore necessary to decide whether this interference could be justified. This very much reflects the Dworkinian type of balancing of principles.⁶⁵⁰ Throughout the whole case, it was clear that neither Article 7 nor 8 would be void even if the balancing had been decided in favour of transparency. However, how to find the proportional balance between principles still had to be determined. Here, the Court of Justice focused on examining whether the interference was compatible with the legitimate limitations on fundamental rights and freedoms as laid down in the Charter.⁶⁵¹

644 According to Article 8(1) of the Charter, everyone has the right to the protection of their own personal data.

645 For more about absolute rights, see Case C-112/00, Schmidtberger, ECLI:EU:C:2003:333; for further reading, H. Delany & E. Carolan, The Right to Privacy: A doctrinal and Comparative Analysis, (Thomson Round Hall, 2008), 58–65.

646 Joined cases C-92/09 and C-93/09 Volker und Markus Schecke GbR and Hartmut Eifert v Land Hessen, ECLI:EU:C:2010:662, para 48; Case C-112/00, Schmidtberger, ECLI:EU:C:2003:333, para 80.

647 Joined cases C-92/09 and C-93/09 Volker und Markus Schecke GbR and Hartmut Eifert v Land Hessen, ECLI:EU:C:2010:662, para 30.

648 For more on dimensions of principles, see R. Dworkin, Taking Rights Seriously, (London, 2009) 22–28.

Also, if the Dworkinian parameters of individual and collective rights are accepted, it provides an interesting perspective on the relation between these two rights. See 90–123.

649 Joined cases C-92/09 and C-93/09 Volker und Markus Schecke GbR and Hartmut Eifert v Land Hessen, ECLI:EU:C:2010:662, paras 58, 60.

650 R. Dworkin, Taking Rights Seriously, (London, 2009) 14–81.

651 In examining the case, the Court of Justice underlined the necessity of evaluating the validity of the provisions

1.2.3.1 Article 51 of the Charter

Guidance on what can be considered legitimate limitations to the rights and freedoms laid down in the Charter is provided in Article 52. Once the Court had established that there was interference with the right to the protection of personal data and that processing the data was not based on the applicants’ consent, the Court of Justice went on to determine whether the criteria under Article 52(1)⁶⁵² of the Charter were met in this case.⁶⁵³ Placing the criteria in Article 52 of the Charter in Robert Alexy’s framework shows them as the justifying circumstances in considering the weight and dimension of principles leading to a situation where one principle is considered weightier.⁶⁵⁴ The Court first examined whether the limitations were regulated by law without losing the essence of the rights which were breached. It then had to assess whether these limitations were in accordance with the general interests of the European Union and in line with the principle of proportionality.⁶⁵⁵

1.2.3.2 Objectives of general interest recognized by the EU

Firstly, the Court of Justice noted that the requirement that the interference be provided by law was clearly met in this case. Secondly, the Court of Justice examined the question of the limitations genuinely meeting the objectives of general interest recognized by the Union.⁶⁵⁶ The aim of the Regulation was quite clear. As it was described in the recitals, it was to strengthen public control over the expenditure of public funds by enhanced transparency.⁶⁵⁷ Hence, the objective of the Regulations was clear and was not disputed at any stage of the proceedings.

laid down in Regulation 1290/2005 and Regulation 259/2008 in light of the freedoms and principles set out in the Charter of Fundamental Rights of the European Union, recalling that it has the same legal force as the treaties.

652 According to Article 52(1) of the Charter, any limitation on the exercise of the rights and freedoms recognized by the Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognized by the Union or the need to protect the rights and freedoms of others.

653 Joined cases C-92/09 and C-93/09 Volker und Markus Schecke GbR and Hartmut Eifert v Land Hessen, ECLI:EU:C:2010:662, para 64.

654 R. Alexy, A Theory of Constitutional Rights, (Oxford, 2010) 100–109.

655 Joined cases C-92/09 and C-93/09 Volker und Markus Schecke GbR and Hartmut Eifert v Land Hessen, ECLI:EU:C:2010:662, para 65.

656 Ibid, paras 66–67.

657 According to Recital 14 of Regulation 1437/2008, “making this information accessible to the public enhances transparency regarding the use of Community funds in the [CAP] and improves the sound financial management of these funds, in particular by reinforcing public control of the money used. Given the overriding weight of the objectives pursued, it is justified with regard to the principle of proportionality and the requirement of the protection of personal data to provide for the general publication of the relevant information as it does not go beyond what is necessary in a democratic society and for the prevention of irregularities”. Recital 6 of Regulation 259/2008 contains a similar statement.

Furthermore, the Court of Justice pointed out that the principle of transparency itself had been recognized in the Treaty on European Union as well as in the Treaty on the Functioning of the European Union.⁶⁵⁸ Very significantly for this study, the Court specifically reiterated its earlier statement that “the principle of transparency enables citizens to participate more closely in the decision-making process and guarantees that the administration enjoys greater legitimacy and is more effective and more accountable to the citizen in a democratic system”.⁶⁵⁹ Consequently, the wording borrowed from the recitals of the Transparency Regulation can be considered an integral part of the settled case-law. Thus, there seems to be no doubt as to the status of the principle of transparency at this stage. Since the principle of transparency seems to have gained the necessary institutional support in the Dworkinian sense in the European Union legal framework, the remaining question is therefore how to balance this principle with other principles.⁶⁶⁰

The Court concluded that the Regulations served the goals of the principle of transparency.⁶⁶¹ Thus, the Court first established that this principle is indeed a general interest recognized by the European Union and, secondly, that the Regulations were based on that general interest.

1.2.3.3 Proportionality

Once it was established that the criteria concerning the legislation and the objectives of general interest recognized by the Union had been met, it was still necessary to see whether the measures taken had been proportional and necessary in the sense of Article 52(1) of the Charter. The Court of Justice examined this question in some detail, taking the following facts into consideration. First, the applicants had argued that publication of the funding information enabled third persons to draw conclusions about their income⁶⁶². Second, as noted earlier, the publication of the information undoubtedly increased transparency of the use of the agricultural aid in question and increased people’s ability to observe how the public funds were being used. Third, determining whether the measures were necessary required that these

658 Joined cases C-92/09 and C-93/09 Volker und Markus Schecke GbR and Hartmut Eifert v Land Hessen, ECLI:EU:C:2010:662, para 68.

659 Case C-41/00 P, Interpoc v Commission, ECLI:EU:C:2003:125, para 39; Joined cases C-92/09 and C-93/09 Volker und Markus Schecke GbR and Hartmut Eifert v Land Hessen, ECLI:EU:C:2010:662, para 68. For a Case C-41/00 P, Interpoc v Commission, see also S. Kadelbach, “Case Law A. Court of Justice”, in Common Market Law Review 38 (2001), 184–186.

660 R. Dworkin, Taking Rights Seriously, (London, 2009) 40.

661 Joined cases C-92/09 and C-93/09 Volker und Markus Schecke GbR and Hartmut Eifert v Land Hessen, ECLI:EU:C:2010:662, paras 71, 75.

662 The funding formed 30% and 70% of the total annual income of the applicants concerned.

measures be reconciled with the fundamental rights to protection of personal data and respect for private and family life.⁶⁶³

In establishing the balance between transparency and the protection of personal data, the Court – with references to its earlier case-law – underlined that derogations and limitations relating to the protection of personal data must apply only where strictly necessary.⁶⁶⁴ The Court of Justice had indeed stated this previously in the Satakunnan Markkinapörssi and Satamedia case.⁶⁶⁵ However, this statement of the Court of Justice should not be taken as a general approach. Rather, it is significant to note that the statement was issued in the context of balancing two fundamental rights. Furthermore, the Court of Justice came to this conclusion only after having first stated that “in order to take account of the importance of the right to freedom of expression in every democratic society, it is necessary, first, to interpret notions relating to that freedom, such as journalism, broadly”.⁶⁶⁶ Consequently, limitations on data protection are to be imposed in a balanced relation to other rights.

Finally, the Court of Justice held that the institutions had not ascertained that publishing the names of the beneficiaries would not exceed what was actually necessary to attain the goal.⁶⁶⁷ The Court of Justice justified its conclusion by pointing out that there was no distinction based on the duration, frequency, nature or the amount of aid received. It also elaborated more restricted ways of publishing names than the way that was actually adopted. The Court also underlined that more limited publication did not seem to provide an insufficient or incorrect picture of the funds granted. In addition, the Court emphasized that “no automatic priority can be conferred on the objective of transparency over the protection of personal data”.

While doing this, it did however reiterate that taxpayers, i.e. the general public, did indeed have the right to know how public funds are spent.⁶⁶⁸⁶⁶⁹

Thereafter, the Court of Justice concluded that the Commission and the Council had not properly balanced the EU’s interest in transparency and the appropriate use of public funds against the protection of personal data and respect for private and family life. Thus, the Court declared Articles 42(8b) and 44a invalid as far as they concern natural persons and are not drafted in more detail, making a distinction between the particular issues described in the judgment.

663 Joined cases C-92/09 and C-93/09 Volker und Markus Schecke GbR and Hartmut Eifert v Land Hessen, ECLI:EU:C:2010:662, paras 58, 73, 75, 76, 77.

664 Joined cases C-92/09 and C-93/09 Volker und Markus Schecke GbR and Hartmut Eifert v Land Hessen, ECLI:EU:C:2010:662, para 77.

665 Case C-73/07, Satakunnan Markkinapörrsi and Satamedia, ECLI:EU:C:2008:727, para 56.

666 Ibid.

667 Joined cases C-92/09 and C-93/09 Volker und Markus Schecke GbR and Hartmut Eifert v Land Hessen, ECLI:EU:C:2010:662, para 86.

668 Ibid., paras 79, 81–83, 85.

669 Joined cases C-465/00, C-138/01 and C-139/01 Österreichischer Rundfunk and Others, ECLI:EU:C:2003:294.

The Court of Justice also underlined that the fact that the data relates to activities of a professional nature was not relevant in this case. This approach was justified by the case-law of the European Court of Human Rights,⁶⁷⁰ which has clarified that the right to privacy might cover activities of a professional nature⁶⁷¹ and should therefore not be limited simply because the data relates to such activities. While keeping in mind that the right to privacy does cover these activities, it should be remembered that interfering with one’s right to the protection of personal data, or privacy for that matter, can be justified in some circumstances.

Even though the Court of Justice did find that certain provisions of the Regulation interfered with the rights of natural persons beyond what was necessary, it did not see this as being the case vis-à-vis legal persons.⁶⁷² As previously mentioned, the identity of the natural persons behind the legal entities was recognizable in this case. The Court of Justice held however that there are significant differences between natural and legal persons, reiterating that legal persons are under stricter obligations to publish data relating to them in comparison with natural persons from the start. The Court of Justice also took a rather practical approach by stating that obliging the national authorities to verify whether there are identifiable natural persons behind legal persons would cause an unreasonable administrative burden.⁶⁷³

1.3 THE TIETOSUOJAVALTUUTETTU V SATAKUNNAN