Opinion of the Advocate General — ECLI:EU:C:2010:353
Date: 2010-06-17
Language of the case: German
Subject matter: Agriculture and Fisheries;Approximation of laws;Fundamental rights;Data protection;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling;Reference for a preliminary ruling - inadmissible
Origin: Germany

Summary of the Judgment 1. Fundamental rights – Right to respect for private life – Protection of personal data – Articles 7 and 8 of the Charter of Fundamental Rights of the European Union – Scope (Charter of Fundamental Rights of the European Union, Arts 7 and 8) 2. Fundamental rights – Right to respect for private life – Protection of personal data – Limitations – Conditions (Charter of Fundamental Rights of the European Union, Arts 7, 8 and 52(1)) 3. Agriculture – Common agricultural policy – Financing by the EAGF and the EAFRD – Regulations Nos 1290/2005 and 259/2008 – Mandatory publication of personal data relating to natural persons receiving aid from the EAGF and the EAFRD (Charter of Fundamental Rights of the European Union, Arts 7 and 8; Council Regulation No 1290/2005, Arts 42(8b) and 44a; Commission Regulation No 259/2008) 4. Preliminary rulings – Assessment of validity – Declaration of invalidity of provisions requiring the publication of personal data relating to beneficiaries of aid from the EAGF and the EAFRD – Effects – Temporal limitation (Arts 264, second para., TFEU and 267 TFEU) 5. Approximation of laws – Protection of natural persons with regard to the processing of personal data – Directive 95/46 – Obligation to notify the supervisory authority – Derogation (European Parliament and Council Directive 95/46, Art. 18(2), second indent) 6. Approximation of laws – Protection of natural persons with regard to the processing of personal data – Directive 95/46 – Prior checks (European Parliament and Council Directive 95/46, Art. 20) 1. The right to respect for private life with regard to the processing of personal data, recognised by Articles 7 and 8 of the Charter of Fundamental Rights of the European Union, concerns any information relating to an identified or identifiable individual. Legal persons can thus claim the protection of Articles 7 and 8 of the Charter only in so far as the official title of the legal person identifies one or more natural persons. That is the case where the official title of a partnership directly identifies natural persons who are its partners. (see paras 52-54) 2. Article 52(1) of the Charter of Fundamental Rights of the European Union accepts that limitations may be imposed on the exercise of rights such as those set forth in Articles 7 and 8 of the Charter, as long as the limitations are provided for by law, respect the essence of those rights and freedoms, and, subject to the principle of proportionality, are necessary and genuinely meet objectives of general interest recognised by the European Union or the need to protect the rights and freedoms of others. The limitations which may lawfully be imposed on the right to the protection of personal data correspond to those tolerated in relation to Article 8 of the European Convention on Human Rights. (see paras 52, 65) 3. Articles 42(8b) and 44a of Regulation No 1290/2005 on the financing of the common agricultural policy, as amended by Regulation No 1437/2007, and Regulation No 259/2008 laying down detailed rules for the application of Regulation No 1290/2005 as regards the publication of information on the beneficiaries of funds deriving from the European Agricultural Guarantee Fund (EAGF) and the European Agricultural Fund for Rural Development (EAFRD) are invalid in so far as, with regard to natural persons who are beneficiaries of EAGF and EAFRD aid, those provisions impose an obligation to publish personal data relating to each beneficiary without drawing a distinction based on relevant criteria such as the periods during which those persons have received such aid, the frequency of such aid or the nature and amount thereof. The amounts which the beneficiaries receive from the EAGF and the EAFRD represent part of their income, often a considerable part, and because the information becomes available to third parties, publication on a website of data naming those beneficiaries and indicating the precise amounts received by them constitutes an interference with their private life within the meaning of Article 7 of the Charter of Fundamental Rights of the European Union. It is of no relevance in this respect that the data published concerns activities of a professional nature. Moreover, the publication required by Article 44a of Regulation No 1290/2005 and Regulation No 259/2008 constitutes the processing of personal data falling under Article 8(2) of the Charter. Furthermore, the fact that the beneficiaries have been informed of the mandatory publication of the data relating to them does not call in question the very existence of an interference with their private life, since Article 42(8b) of Regulation No 1290/2005 and Article 4(1) of Regulation No 259/2008, which merely provide that beneficiaries of aid are to be informed in advance that the data concerning them will be published, do not seek to base the personal data processing for which they provide on the consent of the beneficiaries concerned. Such an interference is not justified having regard to Article 52(1) of the Charter of Fundamental Rights of the European Union. While it is true that in a democratic society taxpayers have a right to be kept informed of the use of public funds, the fact remains that striking a proper balance between the various interests involved made it necessary for the institutions concerned, before adopting the provisions in question, to ascertain whether publication via a single freely consultable website in each Member State of data by name relating to all the beneficiaries concerned and the precise amounts received by each of them from the EAGF and the EAFRD – with no distinction being drawn according to the duration, frequency or nature and amount of the aid received – did not go beyond what was necessary for achieving the legitimate aims pursued, having regard in particular to the interference with the rights guaranteed by Articles 7 and 8 of the Charter resulting from such publication. In this respect, no automatic priority can be conferred on the objective of transparency over the right to protection of personal data, even if important economic interests are at stake. Since it does not appear that the institutions properly balanced, on the one hand, the objectives of Article 44a of Regulation No 1290/2005 and of Regulation No 259/2008 against, on the other, the rights which natural persons are recognised as having under Articles 7 and 8 of the Charter, having regard to the fact that derogations and limitations in relation to the protection of personal data must apply only in so far as is strictly necessary and that it is possible to envisage measures which affect less adversely that fundamental right of natural persons and which still contribute effectively to the objectives of the European Union rules in question, the Council and Commission, by requiring the publication of the names of all natural persons who were beneficiaries of EAGF and EAFRD aid and of the exact amounts received by those persons, exceeded the limits which compliance with the principle of proportionality imposes. By contrast, with regard to the legal persons which received EAGF and EAFRD aid, and in so far as they may invoke the rights conferred by Articles 7 and 8 of the Charter, the view must be taken that the obligation to publish which follows from Articles 42(8b) and 44a of Regulation No 1290/2005 and Regulation No 259/2008 does not go beyond the limits imposed by compliance with the principle of proportionality. The seriousness of the breach of the right to protection of personal data manifests itself in different ways for legal persons and natural persons. Legal persons are already subject to a more onerous obligation in respect of the publication of data relating to them. Furthermore, the obligation on the competent national authorities to examine, before the data in question are published and for each legal person which is a beneficiary of EAGF or EAFRD aid, whether the name of that person identifies natural persons would impose on those authorities an unreasonable administrative burden. (see paras 58-61, 63, 65, 79, 85-87, 89, 92, operative part 1) 4. Where it is justified by overriding considerations of legal certainty, the second paragraph of Article 264 TFEU, which is also applicable by analogy to a reference under Article 267 TFEU for a preliminary ruling on the validity of acts of the European Union, confers on the Court a discretion to decide, in each particular case, which specific effects of the act in question must be regarded as definitive. In the context of a judgment declaring invalid Articles 42(8b) and 44a of Regulation No 1290/2005 on the financing of the common agricultural policy, as amended by Regulation No 1437/2007, and Regulation No 259/2008 laying down detailed rules for the application of Regulation No 1290/2005 as regards the publication of information on the beneficiaries of funds deriving from the European Agricultural Guarantee Fund (EAGF) and the European Agricultural Fund for Rural Development (EAFRD), and in view of the large number of publications which have taken place in the Member States on the basis of rules which were regarded as being valid, the invalidity of the provisions concerned does not allow any action to be brought to challenge the effects of the publication of the lists of beneficiaries of EAGF and EAFRD aid carried out by the national authorities on the basis of those provisions during the period prior to the date on which the judgment is delivered. (see paras 93-94, operative part 2) 5. The second indent of Article 18(2) of Directive 95/46 on the protection of individuals with regard to the processing of personal data and on the free movement of such data must be interpreted as not placing the personal data protection official under an obligation to keep the register provided for by that provision before an operation for the processing of personal data, such as that resulting from Articles 42(8b) and 44a of Regulation No 1290/2005 on the financing of the common agricultural policy, as amended by Regulation No 1437/2007, and Regulation No 259/2008 laying down detailed rules for the application of Regulation No 1290/2005 as regards the publication of information on the beneficiaries of funds deriving from the European Agricultural Guarantee Fund (EAGF) and the European Agricultural Fund for Rural Development (EAFRD), is carried out. (see para. 101, operative part 3) 6. Article 20 of Directive 95/46 on the protection of individuals with regard to the processing of personal data and on the free movement of such data must be interpreted as not imposing an obligation on the Member States to make the publication of information resulting from Articles 42(8b) and 44a of Regulation No 1290/2005 on the financing of the common agricultural policy, as amended by Regulation No 1437/2007, and from Regulation No 259/2008 laying down detailed rules for the application of Regulation No 1290/2005 as regards the publication of information on the beneficiaries of funds deriving from the European Agricultural Guarantee Fund (EAGF) and the European Agricultural Fund for Rural Development (EAFRD) subject to the prior checks for which that Article 20 provides. (see para. 108, operative part 4)