Opinion of the Advocate General — ECLI:EU:C:2009:694
Date: 2009-11-12
Language of the case: German
Subject matter: Approximation of laws;Fundamental rights;Data protection
Procedure: Action for failure to fulfil obligations - successful
Origin: Germany

Summary of the Judgment 1. Approximation of laws – Protection of individuals with regard to the processing of personal data – Directive 95/46 – National supervisory authorities (European Parliament and Council Directive 95/46, Art. 28(1)) 2. Approximation of laws – Protection of individuals with regard to the processing of personal data – Directive 95/46 – National supervisory authorities (European Parliament and Council Directive 95/46, Art. 28(1)) 1. The guarantee of the independence of national supervisory authorities, provided for by the second subparagraph of Article 28(1) 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, is intended to ensure the effectiveness and reliability of the supervision of compliance with the provisions on protection of individuals with regard to the processing of personal data and must be interpreted in the light of that aim. It was established, not to grant a special status to those authorities themselves and their agents, but in order to strengthen the protection of individuals and bodies affected by their decisions. It follows that, when carrying out their duties, the supervisory authorities must act objectively and impartially. For that purpose, they must remain free from any external influence, including the direct or indirect influence of the State or the Länder, and not of the influence only of the supervised bodies. Consequently, the supervisory authorities responsible for supervising the processing of personal data outside the public sector must enjoy an independence allowing them to perform their duties free from external influence. That independence precludes not only any influence exercised by the supervised bodies, but also any directions or any other external influence, whether direct or indirect, which 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 private life and the free movement of personal data. (see paras 25, 30) 2. The mere risk that the scrutinising authorities could exercise a political influence over the decisions of the supervisory authorities responsible for monitoring the processing of personal data, provided for by the second subparagraph of Article 28(1) 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, is enough to hinder the latter authorities’ independent performance of their tasks. First, there could be ‘prior compliance’ on the part of those authorities in the light of the scrutinising authority’s decision-making practice. Secondly, for the purposes of the role adopted by those supervisory authorities as guardians of the right to private life, it is necessary that their decisions, and therefore the authorities themselves, remain above any suspicion of partiality. The State scrutiny exercised over the national supervisory authorities responsible for supervising the processing of personal data outside the public sector is therefore not consistent with the requirement of independence. Consequently, by making the authorities responsible for monitoring the processing of personal data by non-public bodies and undertakings governed by public law which compete on the market in the different Länder subject to State scrutiny, and by thus incorrectly transposing the requirement that those authorities perform their functions with complete independence, a Member State fails to fulfil its obligations under the second subparagraph of Article 28(1) of Directive 95/46. (see paras 36-37, 56, operative part)