European Commission v Hungary.
Date: 2014-04-08
29. First of all, it should be borne in mind that, according to settled case-law, the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in the Member State at the end of the period laid down in the reasoned opinion (Case C‑20/09 Commission  v Portugal  EU:C:2011:214, paragraph 31 and the case-law cited). In the present case, the deadline by which Hungary had to comply with the reasoned opinion was set at one month after notification of that opinion, that is to say, 7 April 2012.
35. Lastly, in response to Hungary’s argument that compliance with a judgment establishing the alleged infringement could create a situation incompatible with the Fundamental Law, it must be observed that the Court has consistently held that a Member State cannot plead provisions prevailing in its domestic legal system, even its constitutional system, to justify failure to observe obligations arising under EU law (see, inter alia, Case 102/79 Commission  v Belgium  EU:C:1980:120, paragraph 15, and Case C‑70/06 Commission  v Portugal  EU:C:2008:3, paragraphs 21 and 22).
47. First of all, it should be borne in mind that the second subparagraph of Article 28(1) of Directive 95/46 requires Member States to set up one or more supervisory authorities with complete independence in the exercise of the duties entrusted to them. In addition, the requirement that compliance with the EU rules on the protection of individuals with regard to the processing of personal data is subject to control by an independent authority derives from the primary law of the European Union and, in particular, from Article 8(3) of the Charter of Fundamental Rights of the European Union and Article 16(2) TFEU.
48. The establishment in Member States of independent supervisory authorities is thus an essential component of the protection of individuals with regard to the processing of personal data (Case C‑518/07 Commission  v Germany  EU:C:2010:125, paragraph 23, and Case C‑614/10 Commission  v Austria  EU:C:2012:631, paragraph 37), as stated in recital 62 in the preamble to Directive 95/46.
51. The Court has held that the second subparagraph of Article 28(1) of Directive 95/46 must be interpreted as meaning that the supervisory authorities responsible for supervising the processing of personal data must enjoy an independence allowing them to perform their duties free from external influence. That independence precludes inter alia any directions or any other external influence in whatever form, whether direct or indirect, which may have an effect on their decisions and which could call into question the performance by those authorities of their task of striking a fair balance between the protection of the right to private life and the free movement of personal data (see, to that effect, Commission  v Germany  EU:C:2010:125, paragraph 30, and Commission  v Austria  EU:C:2012:631, paragraphs 41 and 43).
52. The operational independence of supervisory authorities, in that their members are not bound by instructions of any kind in the performance of their duties, is thus an essential condition that must be met if those authorities are to satisfy the criterion of independence for the purposes of the second subparagraph of Article 28(1) of Directive 95/46, but — contrary to the assertions made by Hungary — such operational independence is not sufficient in itself to protect supervisory authorities from all external influence ( Commission  v Austria  EU:C:2012:631, paragraph 42).
53. In that regard, the Court has held that the mere risk that the State scrutinising authorities could exercise a political influence over the decisions of the supervisory authorities is enough to hinder the latter in the 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, in view of the role adopted by those authorities as guardians of the right to private life, the second subparagraph of Article 28(1) of Directive 95/46 requires that their decisions — and, therefore, the authorities themselves — remain above all suspicion of partiality (see Commission  v Germany  EU:C:2010:125, paragraph 36, and Commission  v Austria  EU:C:2012:631, paragraph 52).
54. If it were permissible for every Member State to compel a supervisory authority to vacate office before serving its full term, in contravention of the rules and safeguards established in that regard by the legislation applicable, the threat of such premature termination to which that authority would be exposed throughout its term of office could lead it to enter into a form of prior compliance with the political authority, which is incompatible with the requirement of independence (see, to that effect, Commission  v Austria  EU:C:2012:631, paragraph 51). That is true even where the premature termination of the term served comes about as a result of the restructuring or changing of the institutional model, which must be organised in such a way as to meet the requirement of independence laid down in the applicable legislation.
64. In that regard, even if judgments delivered under Article 258 TFEU were to have the same effects as those delivered under Article 267 TFEU and even if considerations of legal certainty might therefore make it necessary, exceptionally, to limit their temporal effects, always provided that the conditions laid down by the Court’s case-law in the context of Article 267 TFEU are met (see, inter alia, Case C‑178/05 Commission  v Greece  EU:C:2007:317, paragraph 67 and the case-law cited, and Case C‑82/10 Commission  v Ireland  EU:C:2011:621, paragraph 63 and the case-law cited), it must be held that, in the present case, Hungary has not established that those conditions have been met. In particular, in the light of the failure to fulfil obligations established in paragraph 62 above, the phrase ‘with complete independence’ in the second subparagraph of Article 28(1) of Directive 95/46 is clear in itself and, in any event, that phrase has already been interpreted by the Court in Case C‑518/07 Commission  v Germany  EU:C:2010:125, that is to say, more than a year before the failure established in the present case. Following that judgment, EU law could not reasonably have been understood as authorising Hungary to call upon the Supervisor to vacate office without serving his full term.