Individual information on EU aid should not be published
Volker und Markus Schecke and Hartmut Eifert -v- Land Hessen (Germany).ECJ Nos C-92/09 and C-93/09. European Court of Justice (Grand Chamber). Judgment was delivered on November 9th, 2010, by the Grand Chamber, presided over by V Skouris.
Article 20 of Directive 94/46, (regarding the processing of personal data), must be interpreted as not imposing an obligation on the member states of the EU to make the publication of information from articles 42 (8b) and 44a of regulation 1290/2005 (on the financing of the Common Agricultural Policy), as amended by regulation 1437/2007 and from article 258/2008 (laying down rules on the publication of information on the beneficiaries of funds).
Volker und Markus Schecke GbR and Hartmut Eifert brought proceedings against the Hesse regional government in Germany concerning publication, on its department of agriculture’s internet site, of personal data relating to them as recipients of funds from the European Agricultural Guarantee Fund and the European Agricultural Fund for Rural Development.
The former was an agricultural business run by a partnership, the latter a full-time farmer. They both brought proceedings to prevent publication of the data relating to them, stating they did not consider publication of the amounts to be necessitated by overriding public interest.
The Hesse government undertook not to publish this data until clarification was obtained on issues involved. The local court referred the matter to the European Court of Justice (ECJ), stating it considered the obligation to publish the data constituted an unjustified interference with the fundamental right to protection of personal data.
It considered that the provision, which pursues the aim of transparency in the disbursement of EU funds, did not assist in the prevention of irregularities.
The court asked the ECJ to answer a number of questions relating to the validity and interpretation of the directives concerned, and whether article 20 of directive 95/46 must be interpreted as precluding a practice of storing IP addresses of the users of a home page without their express consent.
The issues raised included the applicants’ rights under Article 8 of the European Convention on Human Rights (right to respect for private and family life) and directive 95/46, concerning the protection of fundamental rights and freedoms and in particular their right to privacy under EU law.
The latter includes provision for the prior checking of data before it is published to ensure it does not present a specific risk to the rights and freedoms of the people concerned.
The court examined the regulations relating to the publication of information on the receipt of agricultural funds, which included the publication of the recipients’ names and addresses and the amounts paid. The regulations also provide for the beneficiaries to be informed that this data will be published.
Under the Charter of Fundamental Rights of the EU, the right to the protection of personal data is recognised, closely linked to the right to respect for private life. It is not an absolute right, but must be considered in relation to its function in society.
The publication of data by name relating to the beneficiaries concerned and the precise amounts received by them from the European Agricultural Guarantee Fund and the European Agricultural Fund for Rural Development constitutes an interference with their rights under the charter, which is not based on their consent, so it is necessary to consider whether this interference is justified in relation to general interests and the rights and freedoms of others.
The publication of information on the disbursement of money from the European Agricultural Guarantee Fund and the European Agricultural Fund for Rural Development increases transparency regarding agricultural aid, reinforces public control of this money and enhances public debate on the matter. One of its effects is to show that individual farmers, as well as big corporations, benefit from EU agricultural funds.
The question is whether this aim is proportionate to the interference with the applicants’ charter rights.
There is nothing to show that, when adopting these measures, the council and the commission took into consideration methods of publishing information which would cause less interference with those beneficiaries’ rights. They ought to have examined whether publication by name limited to the period for which they received aid, or the frequency or nature and amount of aid, would have met their objectives.
They did not properly balance the need to ensure transparency with the rights of individuals under the charter. The council and the commission exceeded the limits which compliance with the principle of proportionality imposes.
The issue concerned legal persons as well as natural persons (individuals). Legal persons already have a more onerous obligation in relation to the publication of data. It would impose an unreasonable administrative burden on the authorities to examine whether each beneficiary is a legal or a natural person for the purpose of deciding on the publication of data. Thus article 44a of regulation 1290/2005 and 259/2008 must be declared invalid to the extent they impose an obligation to publish personal data.
The full judgment is on http://eur-lex.europa.eu