“Confusion now hath made his masterpiece!”* Advocate general reprimands Council and Commission

Posted on June 17, 2010 | Filed Under fundamental rights 

Today’s opinion of advocate general Sharpston in the joined cases C-92/09 Schecke and C-93/09 Hartmut Eifert do not provide new insights into the validity of the data retention directive, as Sharpston declined to answer the two questions addressing this issue that had been put to the ECJ by a German administrative court. According to Sharpston, the “curiously phrased” and “somewhat convoluted” questions should be declared inadmissible because they are purely hypothetical.

The other questions, concerning the validity of regulations requiring the publication of personal data of farmers receiving EU subsidies, are not as hypothetical (but go beyond the the core content of this blog). Just briefly:

  • “The importance of transparency is firmly established in EU law.” (para 66)
  • “However, sometimes (as here) transparency may have to be weighed against another competing objective.” (para 70).
  • “as a matter of principle a person applying for funding from a public body such as the European Union … cannot be required, solely as a condition of obtaining that funding, to forgo a fundamental right” (para 85).
  • “Promoting transparency is, in principle, a legitimate basis for interfering with the rights to privacy and the protection of personal data. …  I am therefore prepared to accept that in principle – and I stress those words – some degree of interference with the rights to privacy and to the protection of personal data in order to promote transparency of the democratic process is ‘necessary in a democratic society’ because it corresponds to a pressing social need.” (para 94)
  • BUT:  Is the interference proportionate? “The vague (if not actually contradictory) nature of the objectives that the institutions say they are pursuing does not permit the conclusion that the measures put in place satisfy the proportionality test.” (paa 118)
  • “In my view, the institutions have not given the Court an explanation that, upon examination, stands up to scrutiny. I do not think that the Court should rubber stamp legislation that refers quite correctly to general principles that are eminently desirable, but – when more specific explanation is sought in order to enable the Court to perform its judicial function – reveals the level of confusion and inter-institutional incoherence that has emerged in this case.” (para 123, emphasis added)

*) Shakespeare, Macbeth, Act II Scene 3

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