Opinion of the Advocate General — ECLI:EU:C:2002:662
Date: 2002-11-14
Language of the case: German
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Approximation of laws;Fundamental rights;Data protection;European Convention on Human Rights
Procedure: Reference for a preliminary ruling
Origin: Austria

SUMMARY — JOINED CASES C-465/00, C-138/01 AND C-139/01 
Summary of the Judgment 
1. Approximation of laws — Directive 95/46 — Scope — Determination in accordance 
with the subject-matter of the directive — Abolition of barriers to the functioning of 
the internal market 
(Directive 95/46 of the European Parliament and of the Council) 
2. Approximation of laws — Directive 95/46 — Interpretation in the light of funda­
mental rights 
(Directive 95/46 of the European Parliament and of the Council) 
3. Community law — Principles — Fundamental rights — Respect for private life — 
Interference within the meaning of Article 8 of the European Convention on Human 
Rights 
(European Convention on Human Rights, Art. 8) 
4. Community law — Principles — Fundamental rights — Respect for private life — 
Restriction — National legislation requiring a State control body to collect and 
communicate, forpurposes of publication, data on the income of persons employed by 
bodies subject to that control where the income exceeds a certain threshold — 
justification under Article 8(2) of the European Convention on Human Rights — 
Objective of public interest — Management of public funds — Proportionality 
(European Convention on Human Rights, Art. 8(2)) 
5. Approximation of laws — Directive 95/46 — National legislation requiring a State 
control body to collect and communicate, for purposes of publication, data on the 
income of persons employed by bodies subject to that control where the income 
exceeds a certain threshold — Permissible — Condition — Disclosure necessary 
with regard to the objective of proper management of public funds — Proportionality 
(Directive 95/46 of the European Parliament and of the Council, Arts 6(1)(c) and 7(c) 
and (e)) 
6. Acts of the institutions — Directives — Effect — Non-implementation by a Member 
State — Right of individuals to rely on the directive — Conditions 
(Art. 249, third para., EC; Directive 95/46 of the European Parliament and of the 
Council, Arts 6(1)(c) and 7(c) and (e)) 
1. The applicability 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 cannot depend on whether the 
specific situations at issue have a suf­
ficient link with the exercise of the 
fundamental freedoms guaranteed by 
the Treaty, in particular the freedom of 
movement of workers. A contrary 
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ÖSTERREICHISCHER RUNDFUNK AND OTHERS 
interpretation could make the limits of 
the field of application of the directive 
particularly unsure and uncertain, 
which would be contrary to its essen­
tial objective of approximating the 
laws, regulations and administrative 
provisions of the Member States in 
order to eliminate obstacles to the 
functioning of the internal market 
deriving precisely from disparities 
between national legislations. 
(see para. 42) 
2. The provisions 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, in so far as they govern the 
processing of personal data liable to 
infringe fundamental freedoms, in par­
ticular the right to privacy, must 
necessarily be interpreted in the light 
of fundamental rights, which form an 
integral part of the general principles of 
law whose observance the Court 
ensures. 
(see para. 68) 
3. While the mere recording by an 
employer of data by name relating to 
the remuneration paid to his employees 
cannot as such constitute an interfer­
ence with private life, the communi­
cation of that data to third parties, in 
the present case a public authority, 
infringes the right of the persons con­
cerned to respect for private life, what­
ever the subsequent use of the infor­
mation thus communicated, and con­
stitutes an interference within the 
meaning of Article 8 of the European 
Convention on Human Rights. 
To establish the existence of such an 
interference, it does not matter whether 
the information communicated is of a 
sensitive character or whether the per­
sons concerned have been incon­
venienced in any way. It suffices to 
find that data relating to the remuner­
ation received by an employee or 
pensioner have been communicated by 
the employer to a third party. 
(see paras 74-75) 
4. The interference with private life 
resulting from the application of 
national legislation which requires a 
State control body to collect and com­
municate, for purposes of publication, 
data on the income of persons 
employed by the bodies subject to that 
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SUMMARY — JOINED CASES C-465/00, C-138/01 AND C-139/01 
control, where that income exceeds a 
certain threshold, may be justified 
under Article 8(2) of the European 
Convention on Human Rights only in 
so far as the wide disclosure not merely 
of the amounts of the annual income 
above a certain threshold of persons 
employed by the bodies subject to 
control by the State body in question 
but also of the names of the recipients 
of that income is both necessary for 
and appropriate to the aim of keeping 
salaries within reasonable limits, that 
being a matter for the national courts 
to examine. 
(see para. 90) 
5. Articles 6(1)(c) and 7(c) and (e) of 
Directive 95/46 on the protection of 
individuals with regard to the process­
ing of personal data and on the free 
movement of such data do not preclude 
national legislation requiring a State 
control body to collect and communi­
cate, for purposes of publication, data 
on the income of persons employed by 
the bodies subject to that control, 
where that income exceeds a certain 
threshold, provided that it is shown 
that the wide disclosure not merely of 
the amounts of the annual income 
above a certain threshold of persons 
employed by the bodies subject to 
control by the State body in question 
but also of the names of the recipients 
of that income is necessary for and 
appropriate to the objective of proper 
management of public funds pursued 
by the legislature, that being for the 
national courts to ascertain. 
(see para. 94, operative part 1) 
6. Wherever the provisions of a directive 
appear, so far as their subject-matter is 
concerned, to be unconditional and 
sufficiently precise, they may, in the 
absence of implementing measures 
adopted within the prescribed period, 
be relied on against any national 
provision which is incompatible with 
the directive or in so far as they define 
rights which individuals are able to 
assert against the State. 
Such a character may be attributed to 
Article 6(1)(c) 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, under which 'personal data must 
be... adequate, relevant and not excess­
ive in relation to the purposes for 
which they are collected and/or further 
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ÖSTERREICHISCHER RUNDFUNK AND OTHERS 
processed', and to Article 7(c) or (e) of 
that directive, under which personal 
data may be processed only if inter alia 
'processing is necessary for compliance 
with a legal obligation to which the 
controller is subject' or 'is necessary for 
the performance of a task carried out in 
the public interest or in the exercise of 
official authority vested in the con­
troller... to whom the data are dis­
closed'. 
(see paras 98, 100-101, operative part 2) 
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