Volker und Markus Schecke GbR (C-92/09) and Hartmut Eifert (C-93/09) v Land Hessen.
Date: 2010-11-09
39. It should be recalled at the outset that although, in view of the division of responsibilities in the preliminary-ruling procedure, it is for the referring court alone to determine the subject-matter of the questions which it proposes to refer to the Court, the Court has held that, in exceptional circumstances, it will examine the conditions in which the case was referred to it by the national court, in order to assess whether it has jurisdiction (Case C‑567/07 Woningstichting Sint Servatius  [2009] ECR I‑9021, paragraph 42).
40. That is the case in particular where the problem referred to the Court is purely hypothetical or where the interpretation or consideration of the validity of a rule of European Union law which is sought by the national court has no relation to the actual facts of the main action or to its purpose (see, to that effect, Case C‑415/93 Bosman  [1995] ECR I‑4921, paragraph 61; Case C‑466/04 Acereda Herrera  [2006] ECR I‑5341, paragraph 48; Case C‑380/05 Centro Europa 7  [2008] ECR I‑349, paragraph 53; and Woningstichting Sint Servatius , paragraph 43).
46. In those circumstances, the validity of Articles 42(8b) and 44a of Regulation No 1290/2005 and of Regulation No 259/2008 must be assessed in the light of the provisions of the Charter.
47. In this regard, Article 8(1) of the Charter states that ‘[e]veryone has the right to the protection of personal data concerning him or her’. That fundamental right is closely connected with the right to respect of private life expressed in Article 7 of the Charter.
48. The right to the protection of personal data is not, however, an absolute right, but must be considered in relation to its function in society (see, to that effect, Case C‑112/00 Schmidberger  [2003] ECR I‑5659, paragraph 80 and the case-law cited).
49. Article 8(2) of the Charter thus authorises the processing of personal data if certain conditions are satisfied. It provides that personal data ‘must be processed fairly for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law’.
50. Moreover, Article 52(1) of the Charter accepts that limitations may be imposed on the exercise of rights such as those set forth in Articles 7 and 8 of the Charter, as long as the limitations are provided for by law, respect the essence of those rights and freedoms and, subject to the principle of proportionality, are necessary and genuinely meet objectives of general interest recognised by the European Union or the need to protect the rights and freedoms of others.
51. Finally, according to Article 52(3) of the Charter, in so far as it contains rights which correspond to rights guaranteed by the Convention, the meaning and scope of those rights are to be the same as those laid down by the Convention. Article 53 of the Charter further states that nothing in the Charter is to be interpreted as restricting or adversely affecting the rights recognised inter alia by the Convention.
52. In those circumstances, it must be considered that the right to respect for private life with regard to the processing of personal data, recognised by Articles 7 and 8 of the Charter, concerns any information relating to an identified or identifiable individual (see, in particular, European Court of Human Rights, Amann v. Switzerland  [GC], no. 27798/95, § 65, ECHR 2000‑II, and Rotaru v. Romania  [GC], no. 28341/95, § 43, ECHR 2000‑V) and the limitations which may lawfully be imposed on the right to the protection of personal data correspond to those tolerated in relation to Article 8 of the Convention.
b) The validity of Article 44a of Regulation No 1290/2005 and of Regulation No 259/2008
53. It must be recalled, in the first place, that the publication required by Article 44a of Regulation No 1290/2005 and Regulation No 259/2008 implementing that article identifies by name all beneficiaries of aid from the EAGF and the EAFRD, among whom are both natural and legal persons. Having regard to the observations in paragraph 52 above, legal persons can claim the protection of Articles 7 and 8 of the Charter in relation to such identification only in so far as the official title of the legal person identifies one or more natural persons.
65. Article 52(1) of the Charter accepts that limitations may be imposed on the exercise of rights such as those set forth in Articles 7 and 8 of the Charter, as long as the limitations are provided for by law, respect the essence of those rights and freedoms, and, subject to the principle of proportionality, are necessary and genuinely meet objectives of general interest recognised by the European Union or the need to protect the rights and freedoms of others.
68. The principle of transparency is stated in Articles 1 TEU and 10 TEU and in Article 15 TFEU. It enables citizens to participate more closely in the decision-making process and guarantees that the administration enjoys greater legitimacy and is more effective and more accountable to the citizen in a democratic system (see Case C‑41/00 P Interporc  v Commission  [2003] ECR I‑2125, paragraph 39, and Case C‑28/08 P Commission  v Bavarian Lager  [2010] ECR I‑0000, paragraph 54).
69. By reinforcing public control of the use of the money from the EAGF and the EAFRD, the publication required by the provisions whose validity is contested contributes to the appropriate use of public funds by the administration (see, to that effect, Österreichischer Rundfunk and Others , paragraph 81).
74. It is settled case-law that the principle of proportionality, which is one of the general principles of European Union law, requires that measures implemented by acts of the European Union are appropriate for attaining the objective pursued and do not go beyond what is necessary to achieve it (Case C‑58/08 Vodafone and Others  [2010] ECR I‑0000, paragraph 51 and the case-law cited).
76. As to whether the measure is necessary, it must be recalled that the objective of the publication at issue may not be pursued without having regard to the fact that that objective must be reconciled with the fundamental rights set forth in Articles 7 and 8 of the Charter (see, to that effect, Case C‑73/07 Satakunnan Markkinapörssi and Satamedia  [2008] ECR I‑9831, paragraph 53).
77. It is thus necessary to determine whether the Council of the European Union and the Commission balanced the European Union’s interest in guaranteeing the transparency of its acts and ensuring the best use of public funds against the interference with the right of the beneficiaries concerned to respect for their private life in general and to the protection of their personal data in particular. The Court has held in this respect that derogations and limitations in relation to the protection of personal data must apply only in so far as is strictly necessary ( Satakunnan Markkinapörssi and Satamedia , paragraph 56).
79. While it is true that in a democratic society taxpayers have a right to be kept informed of the use of public funds ( Österreichischer Rundfunk and Others , paragraph 85), the fact remains that striking a proper balance between the various interests involved made it necessary for the institutions, before adopting the provisions whose validity is contested, to ascertain whether publication via a single freely consultable website in each Member State of data by name relating to all the beneficiaries concerned and the precise amounts received by each of them from the EAGF and the EAFRD – with no distinction being drawn according to the duration, frequency or nature and amount of the aid received – did not go beyond what was necessary for achieving the legitimate aims pursued, having regard in particular to the interference with the rights guaranteed by Articles 7 and 8 of the Charter resulting from such publication.
85. That argument must be rejected. It is necessary to bear in mind that the institutions are obliged to balance, before disclosing information relating to a natural person, the European Union’s interest in guaranteeing the transparency of its actions and the infringement of the rights recognised by Articles 7 and 8 of the Charter. No automatic priority can be conferred on the objective of transparency over the right to protection of personal data (see, to that effect, Commission v Bavarian Lager , paragraphs 75 to 79), even if important economic interests are at stake.
86. It follows from the foregoing that it does not appear that the institutions properly balanced, on the one hand, the objectives of Article 44a of Regulation No 1290/2005 and of Regulation No 259/2008 against, on the other, the rights which natural persons are recognised as having under Articles 7 and 8 of the Charter. Regard being had to the fact that derogations and limitations in relation to the protection of personal data must apply only in so far as is strictly necessary ( Satakunnan Markkinapörssi and Satamedia , paragraph 56) and that it is possible to envisage measures which affect less adversely that fundamental right of natural persons and which still contribute effectively to the objectives of the European Union rules in question, it must be held that, by requiring the publication of the names of all natural persons who were beneficiaries of EAGF and EAFRD aid and of the exact amounts received by those persons, the Council and the Commission exceeded the limits which compliance with the principle of proportionality imposes.
93. Where it is justified by overriding considerations of legal certainty, the second paragraph of Article 264 TFEU, which is also applicable by analogy to a reference under Article 267 TFEU for a preliminary ruling on the validity of acts of the European Union, confers on the Court a discretion to decide, in each particular case, which specific effects of the act in question must be regarded as definitive (see, to that effect, Case C‑333/07 Regie Networks  [2008] ECR I‑10807, paragraph 121 and the case‑law cited).