EU: ECJ hands down judgement on the independence of the German data protection supervisory authorities

Category: Nachrichten, Urteile
By: K. Schiefer - 2B Advice GmbH - the privacy benchmark

In its judgement of 9 March 2010 the European Court of Justice (ECJ) issued its decision regarding the necessary independence of the German data protection supervisory authorities.

Article 28 of Directive 95/46/EC, on which the German Federal Data Protection Act (BDSG) is based, also contains provisions governing the "supervisory authorities." Their task is to "monitor[..] the application within [their] territory of the provisions adopted by the Member States pursuant to this Directive." This applies in particular to the supervision of the non-public sphere. Article 28 of the Directive also states that "[t]hese authorities shall act with complete independence in exercising the functions entrusted to them."

 

In Germany, there is a supervisory system within the public administration and this is true also of the data protection supervisory authorities, as they supervise and monitor the non-public sphere.

 

In its judgement of 9 March 2010 (File No. C-518/07), the ECJ has now declared this form of supervision not conformant with Directive 95/46/EC. Contrary to Germany's perspective, "complete independence" is to be construed such that "every instruction and any other external influence, be it direct or indirect, that could compromise [that independence]" must be excluded. State supervision, however, does not satisfy these requirements since the possibility of influence exists in principle. In this sense, it cannot be excluded that the government of a German State [Bundesland] could potentially have an interest in non-observance of data protection laws, in particular in cases in which the government itself is party to such activities. The court indicated that a conceivable example could be cooperation between public and private entities.

 

As a suggestion for possible alternatives to the organizational integration [of the supervisory authorities] into the administrative system, the ECJ cites other independent public authorities with regulatory functions that are not subject to any supervision.

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