Case C-518/07: Action brought on 22 November 2007 — Commission of the European Communities v Federal Republic of Germany
Date: 2007-11-22
Institutions: Court of Justice
Subjects: European Commission, Germany, action for failure to fulfil an obligation, data processing, data protection, supervisory power

C 37/8

EN

Official Journal of the European Union

9.2.2008

Action brought on 22 November 2007 — Commission of
the European Communities v Kingdom of Spain

Action brought on 22 November 2007 — Commission of
the European Communities v Federal Republic of Germany

(Case C-516/07)

(2008/C 37/09)

Language of the case: Spanish

Parties

(Case C-518/07)

(2008/C 37/10)

Language of the case: German

Parties

Applicant: Commission of the European Communities (repre-
sented by: C. Docksey and C. Ladenburger, acting as Agents)

Defendant: Federal Republic of Germany

Applicant: Commission of the European Communities (repre-
sented by: S.Pardo Quintillán, Agent)

Form of order sought

Defendant: Kingdom of Spain

Form of order sought

for

the

application of

— declare that, by failing to identify all the competent authori-
rules of Directive
ties
2000/60/EC (1) of
the
Council of 23 October 2000 establishing a framework for
Community action in the field of water policy, the Kingdom
of Spain has failed to fulfil its obligations under Article 3(2)
and (7) of the directive; and

the European Parliament and of

the

— by failing to communicate to the Commission the list of all
the competent authorities, the Kingdom of Spain has failed
to fulfil
its obligations under Article 3(8) of Directive
2000/60/EC;

— order Kingdom of Spain to pay the costs.

Pleas in law and main arguments

The Commission's application is based on Article 3 of Directive
2000/60/EC of the European Parliament and of the Council of
23 October 2000 establishing a framework for Community
action in the field of water policy.

According to Article 3(2) and (7) and (8), the Member States are
required to identify the competent authorities for the application
of the rules of Directive 2000/60/EC and to communicate the
list of competent authorities to the Commission within a
prescribed period.

(1) OJ 2000 L 327, p. 1.

the

its obligations under

— declare that the Federal Republic of Germany has failed to
fulfil
second sentence of
Article 28(1) of Directive 95/46/EC (1), by making the super-
visory authorities responsible for the monitoring of data
processing within the private sector in the Länder Baden-
Württemberg,
Bremen,
Berlin,
Hamburg, Hessen, Mecklenburg-Vorpommern, Nieder-
sachsen, Nordrhein-Westfalen, Rheinland-Pfalz, Saarland,
Sachsen, Sachsen-Anhalt, Schleswig-Holstein and Thüringen
subject to State supervision and thereby incorrectly trans-
posing the requirement of ‘complete independence’ of the
data protection supervisory authorities;

Brandenburg,

Bayern,

— order Federal Republic of Germany to pay the costs.

Pleas in law and main arguments

The second sentence of Article 28(1) of Directive 95/46/EC of
the European Parliament and of the Council puts Member States
under an obligation to make ‘one or more public authorities’
responsible for monitoring ‘the application … of the provisions
adopted by the Member States pursuant to this Directive’, that is to
say, of provisions on data protection. The second sentence of
Article 28(1) of the directive requires the ‘complete independence’
of
its
the supervisory authorities responsible. By virtue of
wording, the provision provides that the supervisory authorities
are not to be subject to influence from other authorities or
the
the State administration;
from outside of
Member States must therefore preclude external influence from
being exercised on the decisions of the supervisory authorities
and on the implementation thereof. The wording ‘complete’ inde-
pendence implies not only that there should be no dependence
on any party, but also that there should be no dependence in
any respect whatsoever.

the rules of

It is thus incompatible with the second sentence of Article 28(1)
of the directive to make the supervisory authorities which are
responsible for the monitoring of data processing in the private
sector subject to technical, legal or administrative supervision by
the State, as has occurred in all 16 Länder of
the Federal
Republic of Germany. As the legislation of every Land makes the
supervisory authority subject to those three types of supervision
in varying combinations, the legislation of every Land consti-
tutes a failure by the Federal Republic of Germany to fulfil the
the
obligation in the second sentence of Article 28(1) of

9.2.2008

EN

Official Journal of the European Union

C 37/9

directive to ensure the ‘complete independence’ of the supervisory
authorities. Irrespective of the differences between legal, tech-
nical and administrative supervision, all these types of supervi-
sion constitute an infringement of the independence required by
the directive.

From a teleological point of view, the Community legislature
regarded complete independence as necessary so that the func-
tions which the supervisory authority was intended to have
under Article 28 of the Directive could be carried out effectively.
Furthermore, light is also shed on the concept of ‘complete inde-
pendence’ by the legislative background to the provision. The
requirement of ‘complete independence’ of the supervisory authori-
ties of the Member States also fits in systematically with the
Community acquis existing in the area of data protection law. In
addition, Article 8 of the Charter of Fundamental Rights of the
European Union requires that compliance with the rules on the
protection of personal data must be ‘subject to control by an
independent authority’.

The concept of relative independence advocated by the Federal
Republic of Germany, that is to say, the independence of the
supervisory authority only from that which is being supervised,
cannot in any event be brought into conformity with the unam-
biguous, comprehensive wording of the directive, which requires
‘complete’ independence. In addition, on that interpretation, the
second sentence of Article 28(1) would be completely meaning-
less. Furthermore, the argument that Article 95 EC, as the rele-
vant legal basis for the directive, and the principles of subsi-
diarity and proportionality suggest a restrictive interpretation of
the requirement of ‘complete independence’ must be rejected. The
Court has already held that the directive was adopted in accord-
ance with the areas of competence of the European Parliament
and of the Council and that a restrictive interpretation of its
provisions in non-economic situations is out of the question.
Furthermore, the provision which is at issue does not exceed the
limits of that which is necessary to achieve the objectives which
the directive, in accordance with Article 95 EC and the principle
of subsidiarity, pursues.

(1) OJ 1995 L 281, p. 31.

Appeal brought on 22 November 2007 by Commission of
the European Communities against the judgment delivered
on 12 September 2007 by the Court of First Instance
(Second Chamber) in Case T-348/03 Koninklijke Friesland
Foods NV (formerly Friesland Coberco Dairy Foods
Holding NV) v Commission of the European Communities

(Case C-519/07 P)

(2008/C 37/11)

Language of the case: Dutch

Other party to the proceedings: Koninklijke Friesland Foods NV
(formerly Friesland Coberco Dairy Foods Holding NV)

Form of order sought

— Set aside the judgment under appeal, dismiss the action for
annulment of
and order Koninklijke
Friesland Foods NV (KFF) to pay the costs of the proceedings
before the Court of First Instance and of the present appeal;

the decision (1)

— in the alternative, set aside the judgment under appeal in so
far as it grants rights to operators in the market — other
than Koninklijke Friesland Foods NV — who, as at 11 July
2001, had lodged a request with the Netherlands tax
authority for application of the aid scheme in question, and
dismiss the action for annulment of the decision in so far as
it relates to the grant of rights to operators in the market —
other than KFF — who, as at 11 July 2001, had lodged a
request for application of the aid scheme in question.

Pleas in law and main arguments

The Commission takes the view that the Court of First Instance
has infringed Community law:

(i) by concluding that KFF has a legal

interest in bringing
proceedings because, if its action were to succeed, it would
have certain claims against the Netherlands authorities in
respect of the GFA scheme (judgment under appeal, para-
graphs 58 to 73);

(ii) by concluding that KFF

is directly and individually
concerned by the decision (judgment under appeal, para-
graphs 93 to 101);

(iii) by annulling the decision on the basis of facts which were
not, and could not have been, known to the Commission
when it took its decision, namely KFF's actual circumstances
(judgment under appeal,
in particular, paragraphs 141
to 143);

(iv) Part 1: by manifestly incorrectly regarding as undisputed —
and thus proven — a matter of crucial importance for the
Court's reasoning (erroneously proceeding on the basis that
the Commission did not dispute that the applicant had
taken accounting measures and financial and economic
decisions which could not have been amended within a
period of fifteen months)
(judgment under appeal, para-
graph 137);

Part 2: by concluding that an undertaking which has merely
lodged a request to be able to benefit from the aid scheme
can have legitimate expectations (judgment under appeal, in
particular, paragraphs 125 to 140);

Parties

Appellant: Commission of the European Communities (repre-
sented by: H. van Vliet and S. Noë)

(v) by concluding that KFF is entitled to rely on the principle
of equal treatment (judgment under appeal, paragraphs 149
and 150);