Transparency and Publication of Personal Data

June 22, 2010

Advocate General Eleanor Sharpston QC has delivered an Opinion in Volker und Markus GbR v Land Hessen, Cases C-92/09 and C-93/09, 17 June 2010.

The case is a reference for a preliminary ruling from the Verwaltungsgericht Wiesbaden (Germany) and raises issues concerning the protection of individuals regarding the treatment of personal data. It concerns the publication of information on beneficiaries of funds deriving from the European Agricultural Guarantee Fund and the European Agricultural Fund for rural development. It embodies a challenge to the validity of the legal provisions that require disclosure of the amounts awarded to farmers from CAP funds, together with their names, municipality of residence and, where available, postcode.

The Opinion suggests that whether the publications were a proportionate interference with the right to privacy under Article 8 of the European Convention on Human Rights and the right to protection of personal data under the Data Protection Directive (95/46/EC) depends on whether there was a plausible explanation for why a particular form of publication, at a particular level of detail, was necessary, appropriate and proportionate to achieve the aim that publication was intended to serve.

The Advocate General states that the importance of transparency is firmly established in EU law. She states (at [69]-[70]):

‘Transparency, by its very nature, has to be an open-ended concept. Its purpose is to further openness in a democratic society. Transparency may help to protect the citizen against arbitrary abuse of power. More generally, granting wide access to information so as to achieve an informed public and democratic debate enables citizens to exercise effective supervision over how public authorities make use of the power that those very citizens have conferred on them. Thus, transparency is about public control over public institutions. To the extent that greater transparency equates to more openness and more democratic accountability, greater transparency (rather than less) is normally to be applauded.

However, sometimes (as here) transparency may have to be weighed against another competing objective. To that extent, absolute transparency is not necessarily an absolute good. It is not always a case of ‘the more the better’. Thus, ‘maximum transparency in the public interest’ cannot become a mantra to justify overriding individual rights. In the present case, in order to determine whether the correct balance has been struck between transparency, on the one hand, and privacy and the protection of personal data, on the other hand, it will be necessary to examine exactly what transparency is meant to achieve in the specific context of the CAP.’

The Advocate General takes the view that the consent to publication embodied in the form of application for a grant was not true consent because of ‘economic duress’, pointing out that the CAP funds are the only available source for such funding.

When considering the question of whether publication (in principle) is ‘necessary in a democratic society’ because it corresponds to a pressing social need, the Advocate General warns (at [96]) about the especially intrusive characteristics of Internet publication. The Opinion goes on to say:

‘116. So, was the objective to provide the general public with a greater level of knowledge and awareness about how CAP funds were being spent? Yes, indeed, said the institutions. But why, in that case, was it necessary to publish the name and address of every beneficiary, together with the amount received? Why not some form of data aggregation? Surely informing the public could sufficiently be achieved by grouping data together in pertinent categories, thus preserving the anonymity of individual beneficiaries? Well, said the Commission, that would be very burdensome administratively; and besides, part of the objective was to enhance the general public’s knowledge of who was getting what financial support. I take that to be an (indirect) claim that the general public should know the precise details of beneficiaries. Whether the Commission meant ‘all beneficiaries’ or merely individuals like ‘the Austrian count’ (courteously not identified by name by the Commission’s agent at the hearing) who is, apparently, a major beneficiary of CAP funds was and remained unclear.

117. It thus became apparent that the institutions had rather different notions of the objectives of the contested legislative provisions. The Commission referred repeatedly to the ‘public debate’. It did not, however, define what that really meant. Nor did it explain why the personal details of literally millions of individuals needed to be published in disaggregated form on the internet in order to stimulate (or perhaps facilitate) that debate. The Council referred, in addition, to publication being justified in order to enhance public control over CAP expenditure as part of the fight against fraud – a position from which the Commission expressly dissociated itself.

118. In my view, this is not good enough. The Court has to assess the proportionality of the measures chosen by reference to the desired end to be attained. Once one tries to conduct that assessment here it is, in my view, impossible to uphold the validity of the legislation. 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. Rather, the discussion during the hearing (which was based on, and to a certain extent provoked by, the material advanced in the institutions’ written observations) made it clear that, depending on precisely which objective one identified as the primary objective, a different type of data publication might well be both less intrusive and more appropriate.

119. Let me illustrate the point. If the concern is to see who precisely gets very significant levels of funding from the CAP budget, publication should indeed provide the names of beneficiaries (whether companies or individuals) and show the amount(s) each receives, but such publication should be limited to those receiving more than a specified amount in any calendar year. If, on the other hand, the aim behind publication is to enable the public to participate, on an informed basis, in the debate as to whether the greater part of CAP support should go to one category of farmer rather than another, or whether a particular type of agricultural activity should get more assistance than another, data should be published in an aggregated form that enables the ordinary member of the public to grasp where the money is currently being spent. The material presented by the institutions, both in writing and orally at the hearing, signally failed to explain why the specific form of publication chosen – raw data that is not grouped or aggregated or indeed linked to any obvious characteristic of the CAP that the public might want to debate – does the job that it is meant to do in a proportionate way.

120. So as to avoid any misunderstanding, let me be very clear on two points. First, I am not prescribing to the Commission the precise form in which it should publish data. I am not a statistician; and that is the legislature’s business, not the Court’s. What I am saying is that, where the legislature has chosen a particular form of publication that is intrusive of a right, the responsible institution must be able to explain to the Court why that particular form of publication is necessary, appropriate and proportionate to the specific aim that is pursued. In my view, such an explanation has not emerged in the present case. I do not regard administrative convenience (however desirable that assuredly will be from the perspective of any institution) as an adequate justification by itself.

121. Second, I am (likewise) not prescribing what the precise aim of publication should be. That, again, is the legislature’s business (and, of course, the legislature enjoys a reasonable margin of discretion in what it chooses). Different (multiple) aims may indeed require different (multiple) forms of publication. But each form must be capable of justification as proportionate in the light of the precise, clearly identified, aim that it is intended to serve.’

SCL members will sympathise with the Advocate General’s suggestion (at [136]) that one of the referred questions is ‘impenetrable’.

The Opinion can be accessed in full here.