D: Suitability of measures, in this instance: publication of agricultural subsidies on the Internet

Within just a few days, several German courts issued statements regarding the publication of the recipients of agricultural subsidies on the Internet in July 2009. The publication was based on an EC decree. And the opinions about the reliability conveyed in these statements differed considerably.

The higher administrative court (Oberverwaltungsgericht = OVG) for the Land Schleswig-Holstein decided on June 3, 2009 in three summary proceedings (file ref. 2 MB 7/09, 2 MB 8/09, 2 MB 9/09) that the publication of the names, the home or business addresses and the amounts of payments of the recipients of EC agricultural subsidies may be published on the Internet. The Baden-Württenberg administrative court also ruled in the same way on June 6, 2009 in two proceedings (file ref. 1 S 1166/09, 1 S 1167/09).

The reasoning was that the publication served transparency with respect to the use of EC funds within the framework of the common agricultural policy and the cost-effectiveness of the use of the funds. The measure neither affected privacy in the more narrow sense nor involved violations of the recipients' business or company secrets.

On the other hand, the Mainz administrative court (Verwaltungsgericht = VG) voiced a different opinion in its summary ruling of June 2, 2009 (file ref. 1 L 471/09.MZ). The publication of the data was an infringement of the right to informational self-determination. The court also voiced its doubt as to whether the publication of the data was actually suitable for improving public control of the usage of funds, since the details demanded in this context did not permit any statements to be made about the utilization of the funds and the fulfilment of the conditions. The VG therefore prohibited the publication for the time being.

With respect to the present proceedings, one needs to take into account that these were all summary rulings, where no conclusive legal evaluation has yet taken place. This is being reserved for the future principal proceedings.

Principally, a check is required for any use of data, whether in a business or by state authorities as in this case, to establish whether this planned use is actually suitable for achieving the intended purposes. A measure is suitable if the desired result can be achieved by using it. The present circumstances are a nice example for cases where the use is not suitable. As the Mainz VG also states, the mere listing of the recipients and the subsidies does not make it possible to establish whether the moneys are actually being used according to the conditions and stipulations. In view of the suitability check, this ruling therefore points far beyond the original facts of the case and is clearly of far-reaching importance.