JUDGMENT OF THE COURT (Grand Chamber)

16 October 2012 ( *1 )

‛Failure of a Member State to fulfil obligations — Directive 95/46/EC — Processing of personal data and free movement of such data — Protection of natural persons — Article 28(1) — National supervisory authority — Independence — Supervisory authority and the Federal Chancellery — Personal and organisational links’

In Case C-614/10,

ACTION under Article 258 TFEU for failure to fulfil obligations, brought on 22 December 2010,

European Commission , represented by B. Martenczuk and B.-R. Killmann, acting as Agents, with an address for service in Luxembourg,

applicant,

supported by:

European Data Protection Supervisor (EDPS) , represented by H. Kranenborg, I. Chatelier and H. Hijmans, acting as Agents,

intervener,

v

Republic of Austria , represented by G. Hesse, acting as Agent, with an address for service in Luxembourg,

defendant,

supported by:

Federal Republic of Germany , represented by T. Henze and J. Möller, acting as Agents,

intervener,

THE COURT (Grand Chamber),

composed of V. Skouris, President, K. Lenaerts (Rapporteur), Vice-President, A. Tizzano, M. Ilešič, G. Arestis, M. Berger, E. Jarašiūnas, Presidents of Chambers, E. Juhász, A. Borg Barthet, J.-C. Bonichot, M. Safjan, D. Šváby and A. Prechal, Judges,

Advocate General: J. Mazák,

Registrar: K. Malacek, Administrator,

having regard to the written procedure and further to the hearing on 25 April 2012,

after hearing the Opinion of the Advocate General at the sitting on 3 July 2012,

gives the following

Judgment

1By its action, the European Commission asks the Court to declare that, by failing to take all of the measures necessary to ensure that the legislation in force in Austria meets the requirement of independence with regard to the Datenschutzkommission (Data Protection Commission; ‘the DSK’), which was established as a supervisory authority for the protection of personal data, the Republic of Austria has failed to fulfil its obligations under the second subparagraph of Article 28(1) of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data ( OJ 1995 L 281, p. 31 ).

Legal context

European Union law

2Paragraph 1 of Article 28 of Directive 95/46, which is entitled ‘Supervisory authority’, provides:

‘Each Member State shall provide that one or more public authorities are responsible for monitoring the application within its territory of the provisions adopted by the Member States pursuant to this Directive.

These authorities shall act with complete independence in exercising the functions entrusted to them.’

3Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data ( OJ 2001 L 8, p. 1 ), establishes, in Chapter V, an independent supervisory authority, namely the European Data Protection Supervisor (EDPS).

4Article 43 of Regulation No 45/2001, which covers the regulations and general conditions governing the performance of the EDPS’s duties, provides in paragraph 3 as follows:

‘The [EDPS’s] budget shall be shown in a separate budget heading in Section VIII of the general budget of the European Union.’

Austrian law

Federal Constitutional Law

5Article 20(2) of the Federal Constitutional Law (Bundes-Verfassungsgesetz; ‘the BVG’), as amended on 1 January 2008, is worded as follows:

‘The law may exempt from the obligation to comply with instructions from higher bodies, bodies

…

(2) monitoring the compliance of authorities with the laws in force and in respect of public procurement procedures,

(3) adjudicating at last instance, where acting as a collegiate body and including at least one person in a judicial capacity, and the decisions of which are not subject to repeal or change by way of administrative ruling,

…

(8) to the extent necessary according to European Union law.

The constitutional law of a Land may create other independent bodies. The law shall provide for an appropriate right of supervision of the work of the independent body by higher bodies, at least the right to be informed of all aspects of the work of independent bodies, and – in so far as these are not bodies referred to in points 2, 3 and 8 – the right to remove independent bodies on serious grounds.’

The 1979 Law on the conditions of service of officials

6Paragraph 45(1) of the 1979 Law on the conditions of service of officials (Beamten-Dienstrechtsgesetz 1979; ‘the BDG 1979’), provides as follows:

‘The hierarchical superior shall ensure that his staff carry out their tasks in accordance with the law, efficiently and economically. He shall guide them in carrying out their duties, shall give them instructions when necessary, shall rectify any faults and omissions and shall ensure that working hours are adhered to. He shall encourage the promotion of his staff in accordance with their performance and shall direct them to those tasks which correspond best to their capacities.’

The 2000 Law on data protection

7The 2000 Law on data protection (Datenschutzgesetz 2000; ‘the DSG 2000’) is designed to implement Directive 95/46 in Austrian law.

8Under Paragraph 36(1) of the DSG 2000, the DSK consists of six members who are appointed by the Federal President, on a proposal by the Federal Government, for a term of five years.

9Pursuant to Paragraph 36(2) of the DSG 2000, five members of the DSK are proposed by authorities which statutorily represent various professional interests, by the Austrian Länder and by the President of the Oberster Gerichtshof (Supreme Court). Under Paragraph 36(3) of the DSG 2000, the sixth member ‘is to be proposed from among the lawyers in the federal public administration’.

10In so far as the exercise of duties as a member of the DSK is regarded as a part-time activity, a member of the DSK may, under Paragraph 36(3a) of the DSG 2000, engage in other work at the same time.

11Paragraph 37(1) of the DSG 2000 provides that the members of the DSK ‘shall be independent and shall not be bound by instructions of any kind in the performance of their duties’. Under Paragraph 37(2) of the DSG 2000, the officials working in the office of the DSK ‘shall be bound only by the technical instructions of the chairman and the managing member of the [DSK]’.

12Paragraph 38(1) of the DSG 2000 provides that the DSK is to adopt internal rules entrusting the management of day-to-day business to one of its members (the ‘managing member’).

13Paragraph 38(2) of the DSG 2000 provides:

‘In support of the work of the [DSK], the Federal Chancellor shall establish an office and shall make available the necessary equipment and staff. The Federal Chancellor shall have the right to be informed at all times by the chairman and the managing member of all aspects of the work of the [DSK].’

The internal rules of the DSK

14Article 4(1) of the internal rules of the DSK provides that the position of managing member is to be held by the federal official appointed pursuant to Paragraph 36(3) of the DSG 2000.

15Article 7(1) of those internal rules provides that, without prejudice to supervision by the Federal Chancellor, the officials working in the DSK office are to take instructions only from the chairman or the managing member of the DSK.

The pre-litigation procedure

16On 5 July 2005, the Commission sent a letter of formal notice to the Republic of Austria in which it claimed that the organisation, in law and in fact, of the DSK failed to satisfy the criterion of independence set out in the second subparagraph of Article 28(1) of Directive 95/46.

17By letter of 2 November 2005, the Republic of Austria sent to the Commission its observations in response to that letter of formal notice, submitting that the DSK did meet the requirements of that directive.

18On 8 January 2008, the Commission sent a supplementary letter of formal notice to the Republic of Austria in which it requested the latter to provide it with more extensive information on the consequences for the DSK of the entry into force of the amendment to the BVG of 1 January 2008.

19In its additional observations of 9 January and 7 March 2008, the Republic of Austria explained that the amended version of Article 20(2) of the BVG had no bearing on the DSK’s independence.

20Subsequently, on 9 October 2009, the Commission sent a reasoned opinion to the Republic of Austria, reiterating the complaints made previously.

21As the Commission was not satisfied by the Republic of Austria’s observations in its letter of 9 December 2009 in response to the reasoned opinion, it brought the present action.

22By order of the President of the Court of 18 May 2011, the Federal Republic of Germany was granted leave to intervene in support of the form of order sought by the Republic of Austria.

23By order of the President of the Court of 7 July 2011, the EDPS was granted leave to intervene in support of the form of order sought by the Commission.

24By letter of 25 November 2011, the Republic of Austria requested, on the basis of the second subparagraph of Article 44(3) of the Rules of Procedure of the Court of Justice, that the case be decided by the Grand Chamber.

The action

Arguments of the parties

25The Commission and the EDPS claim that the Republic of Austria has incorrectly transposed the second subparagraph of Article 28(1) of Directive 95/46 in so far as the national legislation in force does not allow the DSK to exercise its functions ‘with complete independence’. They refer in this respect, first, to the fact that, according to the legislation in force, the managing member of the DSK must always be an official of the Federal Chancellery. All day-to-day business of the DSK is thus de facto managed by a federal official, who remains bound by the instructions issued by his employer and is subject to supervision within the terms of Paragraph 45(1) of the BDG 1979. Paragraph 37(1) of the DSG 2000 provides only for the operational autonomy of the supervisory authority.

26Second, the Commission and the EDPS point out that the office of the DSK is structurally integrated with the departments of the Federal Chancellery. As a result of that integration, they contend, the DSK is not independent in either organic or substantive terms. All DSK staff members are, as is apparent from Paragraph 38(2) of the DSG 2000 and from Article 7(1) of the internal rules, under the authority of the Federal Chancellery and are thus subject to its supervision.

27Third, the Commission and the EDPS refer to the Federal Chancellor’s right to be informed pursuant to Article 20(2) of the BVG and Paragraph 38(2) of the DSG 2000.

28The Republic of Austria and the Federal Republic of Germany claim that the action should be dismissed.

29They note that the DSK is a ‘collegiate authority with judicial functions’ within the meaning of the BVG. Such a body, they argue, constitutes an independent court or tribunal within the terms of Article 267 TFEU and Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, which therefore also meets the requirement of independence laid down in the second subparagraph of Article 28(1) of Directive 95/46.

30According to the Republic of Austria, the second subparagraph of Article 28(1) of Directive 95/46 relates to functional independence. The DSK has such independence since, in accordance with Paragraph 37(1) of the DSG 2000, its members are independent and are not bound by instructions of any kind in the performance of their duties.

31None of the factors put forward by the Commission, they argue, is capable of calling into question the DSK’s independence within the meaning of the second subparagraph of Article 28(1) of Directive 95/46.

32First, the managing member of the DSK need not necessarily be an official of the Federal Chancellery. Under Article 4(1) of the internal rules and Paragraph 36(3) of the DSG 2000, the managing member is proposed from among the lawyers in the federal public administration. Moreover, the DSK can itself freely decide whom to appoint as its managing member by amending, on an autonomous basis, its internal rules. The fact that, like any other official, the managing member depends, for purposes of promotion, on the decision of his hierarchical superior and, ultimately, of a minister does not affect his independence.

33Second, as regards the integration of the office of the DSK with the departments of the Federal Chancellery, the Republic of Austria claims that all bodies of the federal public administration come, from the point of view of budgetary law, under a ministerial department. It is for the Government, in conjunction with the Parliament, to ensure that the various executive bodies have adequate equipment and staff. In addition, the DSK office is exclusively responsible for the management of its action programmes. The DSK office staff comply with the instructions issued by the chairman and the managing member of the DSK. The fact that the staff of the office are, in legal terms, attached to the Federal Chancellery, both in terms of hierarchy and remuneration, does not affect their independence. Supervision, in terms of disciplinary controls, ensures the effective operation of the DSK.

34Third, as regards the ‘right to information’ of the Federal Chancellor, the Republic of Austria notes that that right seeks to ensure a certain democratic link between the autonomous bodies and the Parliament. The right to information provides no scope for the exercise of influence over the DSK’s functioning. In addition, a right to information is not contrary to the requirements of independence applicable to a court or tribunal.

35In its statement in intervention, the Federal Republic of Germany adds that limited supervision complies with the requirements of the second subparagraph of Article 28(1) of Directive 95/46. Limited supervision ensures only that the person being supervised acts in accordance with his obligations. It does not, by contrast, adversely affect his material and personal independence and, in particular, provides no influence over that person in respect of substance. German constitutional case-law has recognised the compatibility of limited supervision in respect of courts with the principle of judicial independence.

Findings of the Court

—

the managing member of the DSK is a federal official subject to supervision,

—

the office of the DSK is integrated with the departments of the Federal Chancellery, and

—

the Federal Chancellor has an unconditional right to information covering all aspects of the work of the DSK,

the Republic of Austria has failed to fulfil its obligations under the second subparagraph of Article 28(1) of Directive 95/46.

Costs

67Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Commission has applied for costs to be awarded against the Republic of Austria, and since it has been unsuccessful, the Republic of Austria must be ordered to pay the costs.

68In accordance with the first and third subparagraphs of Article 69(4) of the Rules of Procedure, the Federal Republic of Germany and the EDPS, which have intervened in the proceedings, are to bear their own costs.

On those grounds, the Court (Grand Chamber) hereby:

1.Declares that, by failing to take all of the measures necessary to ensure that the legislation in force in Austria meets the requirement of independence with regard to the Datenschutzkommission (Data Protection Commission), more specifically by laying down a regulatory framework under which

—

the managing member of the Datenschutzkommission is a federal official subject to supervision,

—

the office of the Datenschutzkommission is integrated with the departments of the Federal Chancellery, and

—

the Federal Chancellor has an unconditional right to information covering all aspects of the work of the Datenschutzkommission,

the Republic of Austria has failed to fulfil its obligations under the second subparagraph of Article 28(1) of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data;

2.Orders the Republic of Austria to pay the costs incurred by the European Commission;

3.Orders the Federal Republic of Germany and the European Data Protection Supervisor to bear their own respective costs.

[Signatures]

( *1 ) Language of the case: German.