European Commission v Federal Republic of Germany.
Date: 2010-03-09
17. The assessment of the substance of the present action depends on the scope of the requirement of independence contained in the second subparagraph of Article 28(1) of Directive 95/46 and, therefore, on the interpretation of that provision. In that context, the wording itself of that provision and the aims and scheme of Directive 95/46 should be taken into account.
18. With regard, in the first place, to the wording of the second subparagraph of Article 28(1) of Directive 95/46, because the words ‘with complete independence’ are not defined by that directive, it is necessary to take their usual meaning into account. In relation to a public body, the term ‘independence’ normally means a status which ensures that the body concerned can act completely freely, without taking any instructions or being put under any pressure.
20. In the second place, concerning the objectives of Directive 95/46, it is apparent from the third, seventh and eighth recitals in the preamble thereto that, through the harmonisation of national provisions on the protection of individuals with regard to the processing of personal data, that directive seeks principally to ensure the free movement of such data between the Member States, which is necessary for the establishment of and the functioning of the internal market, within the meaning of Article 14(2) EC (see, to that effect, Joined Cases C‑465/00, C‑138/01 and C‑139/01 Österreichischer Rundfunk and Others  [2003] ECR I‑4989, paragraphs 39 and 70).
22. For that reason, and as is apparent in particular from the 10th recital in the preamble to, and from Article 1 of, Directive 95/46, the latter seeks also not to weaken the protection guaranteed by the existing national rules, but on the contrary to ensure, in the European Community, a high level of protection of fundamental rights and freedoms with respect to the processing of personal data (see, to that effect, Österreichischer Rundfunk and Others , paragraph 70, and Case C‑73/07 Satakunnan Markkinapörssi and Satamedia  [2008] ECR I‑0000, paragraph 52).
23. The supervisory authorities provided for in Article 28 of Directive 95/46 are therefore the guardians of those fundamental rights and freedoms, and their existence in the Member States is considered, as is stated in the 62nd recital in the preamble to Directive 95/46, as an essential component of the protection of individuals with regard to the processing of personal data.
24. In order to guarantee that protection, the supervisory authorities must ensure a fair balance between, on the one hand, observance of the fundamental right to private life and, on the other hand, the interests requiring free movement of personal data. Furthermore, under Article 28(6) of Directive 95/46, the different national authorities are called upon to cooperate with one another and even, if necessary, to exercise their powers at the request of an authority of another Member State.
25. The guarantee of the independence of national supervisory authorities 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 as well as 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.
29. By relying on the wording itself of the second subparagraph of Article 28(1) of Directive 95/46 and on the aims and scheme of that directive, it is possible to reach a clear interpretation of the second subparagraph of Article 28(1) thereof. It is therefore not necessary to take into account the origins of that directive, or to rule on the arguments presented by the Commission and the Federal Republic of Germany, which are contradictory on that point.
30. In the light of the foregoing, the second subparagraph of Article 28(1) of Directive 95/46 is to be interpreted as meaning that 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.
State Scrutiny
36. Furthermore, it should be pointed out that the mere risk that the scrutinising authorities could exercise a political influence over the decisions of the supervisory authorities is enough to hinder the latter authorities’ independent performance of their tasks. First, as was stated by the Commission, 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 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.
49. That provision empowers the Community legislature to adopt measures to improve the conditions for the establishment and functioning of the internal market and they must genuinely have that object, contributing to the elimination of obstacles to the economic freedoms guaranteed by the EC Treaty (see, in particular, Case C‑376/98 Germany  v Parliament and Council [2000] ECR I‑8419, paragraphs 83, 84 and 95; Case C‑491/01 British American Tobacco (Investments) and Imperial Tobacco  [2002] ECR I‑11453, paragraph 60; and Case C‑436/03 Parliament  v Council  [2006] ECR I‑3733, paragraph 38).