JOINT DISSENTING OPINION OF JUDGES WOJTYCZEK AND PACZOLAY

1. With regret, we cannot agree with the majority’s finding that there has been a violation of Article 8 of the Convention in the present case based on the reasons given in the judgment. We agree with several of the judgment’s findings in terms of its reasoning. However, owing to the smaller part that is not acceptable to us, we do not agree with the final conclusions of the judgment.

2. We agree that reputation forms a part of personal identity and falls within the scope of private life and that the right to protection of personal data is guaranteed by the right to respect for private life under Article 8. It is also obvious that the applicant’s name and home address constitute information about private life, which means that publication of these data amounts to interference with Article 8. There is clear statutory authorisation in Hungarian national law for the publication of debtors’ personal data, and we agree with the conclusion of the judgment that this rule pursues a legitimate aim. This legitimate aim is to bring about an improvement in tax discipline and thereby ensure the economic well-being of the country. The further aim of the rule is to protect the rights and freedoms of others by serving the transparency and reliability of business relations. This led the majority in the Chamber to find no violation.

3. The majority of the Grand Chamber found a violation of Article 8 on the following grounds:

“... it does not appear that the legislature contemplated taking measures to devise appropriately tailored responses in the light of the principle of data minimisation. The Court finds no evidence of such considerations in the legislative history either of the 2003 Tax Administration Act or of the 2006 Amendment Act. ... In short, the respondent State has not demonstrated that the legislature sought to strike a fair balance between the relevant competing individual and public interests with a view to ensuring the proportionality of the interference” (see paragraphs 137-138 of the judgment).

We have serious objections to this approach, which finds a violation of the Convention based solely on shortcomings in the Hungarian parliamentary review without showing any evidence to that effect.

4. The applicant alleged that the publication of his personal data on a list appearing on the website of the National Tax and Customs Authority (“the Tax Authority”), for failure to comply with his tax obligations, infringed his right to respect for private life as protected by Article 8 of the Convention (see paragraph 1 of the judgment).

5. The Court has held that the protection of personal data is of fundamental importance to a person’s enjoyment of his or her right to respect for private and family life as guaranteed by Article 8 of the Convention. Domestic law must afford appropriate safeguards to prevent any such use of personal data as may be inconsistent with the guarantees in Article 8 of the Convention (see Z v. Finland , 25 February 1997, § 95, Reports of Judgments and Decisions 1997-I; S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, § 103, ECHR 2008; and Satakunnan Markkinapörssi Oy and Satamedia Oy v. Finland [GC], no. 931/13, § 137, 27 June 2017) (see paragraph 122 of the judgment).

6. What the Grand Chamber examined were the general measure and the quality of the parliamentary review. We see serious procedural problems with focusing the scope of the case on these elements. Firstly, the applicant did not request examination of the general measure, thus the judgment ruled ultra petita . Secondly, the issue was not communicated to the parties, the applicant had no opportunity to reflect on it, and the Government could not respond to it in their written observations. Hence the present judgment is a clear example of what the procedural law calls a “surprise judgment”, where a court grounds its judgment on elements that were not raised during the deliberation of the case. This clearly violates the requirement of a fair trial. This situation was aggravated by the fact that the burden of proof was reversed and the Court found against the respondent State because it had not demonstrated something that had not been requested (see paragraph 138 of the judgment). According to the case-law of our Court, each party must be given a reasonable opportunity to comment on all relevant aspects of the case, not only in respect of the evidence, but also in respect of the legal issues, that is to say, an opportunity to participate effectively in the proceedings. It is to be emphasised that this also refers to legal arguments raised by the Court of its own motion.

7. We feel obliged to add the following to the factual background.

8. The provision concerning the list of major tax defaulters discussed in this case was introduced into the Hungarian legal system for the first time in 1995. It should be noted that Hungary reverted to a market economy in 1990. The Minister of Finance submitted the draft Law to Parliament (amending Tax Administration Act no. XCI of 1990) on 24 October 1995. Between 31 October 1995 and 5 December 1995 four parliamentary committees (constitutional affairs, economic affairs, budget and agriculture respectively) discussed the draft Law on four occasions. Subsequently, the full Parliament also discussed it several times, and members of Parliament intervened in that debate 49 times.

9. The explanatory statement by the Secretary of State at the Ministry of Finance emphasised the following:

“It is obvious to everyone how important the rules of tax secrecy are and what weighty interests attach to their compliance. At the same time, it is also justified for the public to be made aware in a regulated manner of the identity of those taxpayers who have seriously breached the principle of equal sharing of the public burden.”

During the parliamentary debate one of the most contentious topics was precisely this provision, and especially its constitutionality, and the Government withdrew a part of the proposal. (For the list of documents relating to the draft Law in Hungarian see https://www.parlament.hu/iromany/01548ir.htm )

10. The provision enacted in Act CX of 1995 – which entered into force on 1 January 1996 – is exactly and literally the same as section 55(3) of the 2003 Tax Administration Act. The subsequent amendments to the Tax Administration Act (in 2006 and 2017) upheld this provision without any change. (The rule was supplemented in 2006 by the list of major tax debtors – section 55(5), see paragraph 13 of the judgment.)

11. The list of major tax debtors was part of a statutory scheme set up to respond by means of deterrence to the phenomenon of non-compliance with the tax rules. The national legislature introduced through the 2006 amendment of the 2003 Tax Administration Act a new provision, section 55(5), whereby lists of tax debtors at large were to be published. These measures were aimed at complementing the schemes for the publication of information on tax defaulters under section 55(3) and on companies that had failed to register with the Tax Authority. Other mandatory lists for publication concerned employers who had failed to declare their employees and taxpayers who had not submitted a tax return for two years. As is apparent from the preparatory works to the 2006 amendments, the legislature considered this new measure necessary for the purposes of “whitening the economy” and reinforcing the capacities of the tax and customs authorities. The justification for broadening the categories of taxpayers subject to publication to include tax debtors was that unpaid tax liability was not only a matter of tax arrears established in tax inspection proceedings, but could also be the result of any conduct in breach of the person’s tax payment obligations.

12. Section 55(5) differs from section 55(3) only in the manner in which the published tax debt arose: while subsection (3) refers to the “tax arrears” ( adóhiány ), subsection (5) refers to the “tax debt” ( adótartozás ) that is owed. From the point of view of the raison d’être of the legal institution and its impact on human rights, it is irrelevant whether the non-payment of the tax was determined by a decision of the tax authority or transpired from the taxpayer’s declaration; similarly, from the point of view of tax payment morals – or the lack thereof – the two situations are of the same nature. This was precisely one of the reasons for the introduction of subsection (5), in order to remedy the lack of precision of the previous rule. That is why we think the debate surrounding section 55(3) is still important.

13. Moreover, the constitutionality of the rule was accepted by the Constitutional Court following judicial review proceedings (see paragraph 34 of the judgment).

And let us add that, when in 2000 the European Commission assessed the adequacy of the protection of personal data in Hungary, the preamble to its Decision stated as follows:

“(8) The legal standards applicable in Hungary cover all the basic principles necessary for an adequate level of protection for natural persons, even if exceptions and limitations are also provided for in order to safeguard important public interests. The application of these standards is guaranteed by judicial remedy and by independent supervision carried out by the Commissioner appointed by the Parliament pursuant to Law LXIII of 1992. Furthermore, the compensation of persons who have suffered prejudice as a result of unlawful processing is guaranteed by law.”

The Commission concluded in Article 1 of the Decision that “[f]or the purposes of Article 25(2) of Directive 95/46/EC, for all the activities falling within the scope of that Directive, Hungary is considered as providing an adequate level of protection of personal data transferred from the Community [1] .”

14. The Grand Chamber majority decided that the necessity test should focus on the quality of the parliamentary and judicial review and the risk of abuse of general measures (see paragraph 125 of the judgment). In this regard they cite Correia de Matos v. Portugal ([GC], no. 56402/12, § 117, 4 April 2018), stating that “... the Court has repeatedly held that the choices made by the legislature are not beyond its scrutiny and has assessed the quality of the parliamentary and judicial review of the necessity of a particular measure.” The case in which this approach was first implemented was Animal Defenders International v. the United Kingdom ([GC], no. 48876/08, § 108, ECHR 2013 (extracts)), a controversial 9:8 judgment in a case that bears no similarity to the present one.

15. We would just point out three substantial differences between Animal Defenders and the present case. Firstly, in Animal Defenders the applicant complained under Article 10 about the statutory prohibition of paid political advertising on radio and television (§ 76); the applicant was not, as in the present case, a gross tax debtor seeking to assert his privacy rights. Secondly, the applicant claimed that the proportionality of a general measure fell to be tested against, and demonstrated by, the practical and factual realities of an individual case (§ 83). Thirdly, Animal Defenders used the fact of the exceptionally detailed parliamentary debate in order to exonerate the respondent State. We know the political science clichés about the functioning of the United Kingdom Parliament, where the governing majority, essentially the government, decides on everything and the true function of the House, stirred by an active opposition, is to question and debate the policy of the government.

16. In our case the applicant did not seek a test in respect of the general measure, and the role of the parliamentary debate was reversed: the exception became the rule, and a deviation from the rules of parliamentary debate led the majority to find a violation of the Convention. We would quote the following passage from Animal Defenders (§ 111):

“Accordingly, it is relevant to recall that there is a wealth of historical, cultural and political differences within Europe so that it is for each State to mould its own democratic vision ( Hirst v. the United Kingdom (no. 2) [GC], no. 74025/01, 6 October 2005, § 61; and Scoppola v. Italy (no. 3) [GC], no. 126/05, 22 May 2012, § 83). By reason of their direct and continuous contact with the vital forces of their countries, their societies and their needs, the legislative and judicial authorities are best placed to assess the particular difficulties in safeguarding the democratic order in their State ( Ždanoka v. Latvia [GC], no. 58278, 16 March 2006, § 134). The State must therefore be accorded some discretion as regards this country-specific and complex assessment which is of central relevance to the legislative choices at issue in the present case.”

17. We would add an important remark from the concurring opinion of Judge Bratza in that case (§ 17):

“The role of the Strasbourg Court in a case of this kind is not to carry out its own balancing test or to substitute its own view for that of the national legislature, based on independent scrutiny, as to whether a fair and workable compromise solution could be found which would address the underlying problem or as to what would be the most appropriate or proportionate way of resolving that problem. Its role is rather, as the judgment makes clear, to review the decision taken by the national authorities in order to determine whether in adopting the measures in question and in striking the balance in the way they did, those authorities exceeded the margin of appreciation afforded to them.”

18. As regards the other case referred to by the judgment ( Correia de Matos , cited above), in that judgment the Court stated that “[t]here is therefore no doubt that Portuguese law on criminal procedure is particularly restrictive when it comes to the possibility for accused persons to conduct their own defence without legal assistance if they wish to do so” (§ 144). The Court further noted that the Portuguese legislature had reviewed certain questions relating to mandatory assistance in criminal proceedings, but that the legislative choice of this legal defence mechanism remained unchanged, in one case following confirmation by the Constitutional Court in 2001 of its compatibility with the Constitution and the Convention (§ 146). This and nothing more was effected by the legislation. Nevertheless the Court approved this very limited parliamentary review and held, by nine votes to eight, that there had been no violation of Article 6 §§ 1 and 3 (c) of the Convention. This makes even stranger the conclusion reached in our case.

19. We are somewhat sceptical as to the possibility of an objective assessment of the quality of parliamentary work. Paradoxically, the more controversial the issue, the more debates and expert documents there are, suggesting prima facie a higher quality of review, while the greater the agreement among parliamentarians about the necessity of an interference, the fewer debates and expert documents there are, suggesting prima facie a lower quality of review. The approach adopted by the majority may end up inciting parliamentary majorities more frequently to commission accommodating expert opinions justifying an interference with Convention rights, in order to satisfy the test of the quality of parliamentary review in the Strasbourg proceedings. At the same time, the opposition’s efforts to challenge a measure may ultimately tip the balance in favour of the contested measure, under the test in question.

20. In this context we agree with the view expressed by Judge KÅ«ris in his separate opinion, that the respondent State could, hypothetically, execute the instant judgment by re-enacting the impugned measures, thereby ensuring that the parliamentary review meets the standards set by the majority. And what if complaints arrive from the countries that similarly publish the addresses of tax debtors (Albania, Croatia, Finland, Ireland, North Macedonia, Slovakia, the United Kingdom)? Will the Court examine the legislative history in each case?

21. While the above-mentioned cases examined the general measures as applied to the concrete circumstances of the case, the individual assessment in the present case is completely absent. The Court consistently refrains from dealing with actio popularis type requests, yet this judgment does not deal with the person of the applicant at all.

22. When assessing the balancing of private rights and the public interest, the factual background to the case should not be forgotten. The applicant’s company issued fictitious invoices in the value of hundreds of millions of Hungarian forints. The corresponding amounts were paid into the company’s account, from which they were withdrawn in cash by the applicant. The first ‑ instance court could only establish from the receipts attached by the applicant that he was able to produce at any given time the documents that seemed necessary to substantiate his claims. It is also worth mentioning that a part of the applicant’s tax debt (450 million Hungarian forints [HUF], approximately 1,140,000 euros [EUR]) was not paid and could not be reimbursed in the enforcement proceedings; indeed, ultimately it had to be cancelled in 2019 as being time-barred.

23. Instead of conducting an abstract review of the legislative process the Court should have decided on the measures taken by the authorities in the specific proceedings. The justification for the finding of a “narrow” violation is simply that Parliament did not sufficiently consider the balance to be struck between the public interest in disclosure of the data and the rights protected under Article 8 as private interests, before enacting a law serving a legitimate purpose. We cannot agree with this argument.

24. In our opinion, the rule itself and not the path leading to it should have been examined, and a violation could have been established if the result did not meet the requirement of necessity in a democratic society, that is, if the rule unreasonably gave precedence to the public interest over private interests. However, the judgment does not make such a finding (which would have affected at least seven other countries).

25. Our opinion on the case is basically similar to the findings of the Chamber judgment, to the effect that the disclosure of the private data in question did not place a substantially greater burden on the applicant’s private life than was necessary to further the State’s legitimate interests.

26. Firstly, it is true that once the legislature had established the criteria for publication, the Tax Authority was only required to make a factual determination as to whether the information fell within the exceptions to tax confidentiality under section 55(5), with no further argument or inquiry into the competing considerations being required, namely the interest in disclosure and the interest of the taxpayer in the protection of his or her privacy. While in theory it would be possible to empower the Tax Authority to examine the various interests at stake in publication, we have doubts as to whether it was reasonable to expect such an assessment to be conducted in sufficient depth in situations where the information was extensive and concerned thousands of taxpayers. Moreover, if the Tax Authority were to decide how to interpret and apply the exceptions in the Tax Administration Act in each individual situation, it would risk distorting the legislature’s aim in enacting the publication scheme, namely deterrence on the one hand and scrutiny by business partners on the other. Therefore, we see no reason to criticise the legislature for finding that a general measure was a more feasible means of achieving the said aims – and, by implication, those considered legitimate under Article 8 § 2 of the Convention – than a provision allowing for case ‑ by ‑ case examination.

27. Moreover, as to the nature of the information disclosed on the list in question and its potential harm to the persons concerned, we note that it did not affect an important aspect of an individual’s existence or identity or any intimate aspects of private life. As regards the applicant’s argument that the section 55(5) publication scheme was overbroad and inconsistent with the principle of data minimisation, we find it significant that the disclosure of tax information was structured as an exception to the general rule of tax confidentiality. It is apparent that Parliament, by specifically providing for the disclosure of tax identity information in relation to tax debts, considered in substance that the public interest in ensuring tax compliance and the private interests of potential business partners outweighed, in certain circumstances, the privacy interests of tax debtors requiring that tax identity information generally be kept confidential.

28. Furthermore, Parliament itself put in place safeguards to tightly restrict disclosure, tailoring the provisions of the 2003 Tax Administration Act to the risk posed by the tax debtor to public revenue and to potential business partners. Firstly, only those individual tax debtors whose tax debts exceeded HUF 10 million (EUR 28,000) came within the sweep of the publication requirement. Secondly, an additional precondition for publication on the list of major tax debtors was that the taxpayer had failed to fulfil his or her payment obligations for 180 days. We find these thresholds material to the assessment of the proportionality of the measure here in issue. We thus consider that the legislature made the necessary distinction between different types of taxpayers subject to disclosure, limiting the interference with private life to those whose conduct presented a considerable risk to public revenue or to potential business interests.

29. Since the cornerstone of the publication scheme was identifying taxpayers who had failed to fulfil their payment obligations, the competent national authorities were entitled to consider that adding the home address to the tax debtors’ list might be instrumental to the success of the publication scheme. It also ensured the accuracy of taxpayer information by making it possible to distinguish between taxpayers who had the same name, in order not to give a misleading impression of third parties. The Court cannot criticise the domestic authorities for finding that using a different category of data, namely the tax identification number, which was apparently indecipherable for the public, was not a viable solution.

30. Finally, we note that although tax debtors could not seek the erasure of their private data from the list, any interference with their private life was subject to a temporal limitation and the publication scheme was set up in a manner ensuring that they were not to be identified on the list of major tax debtors for any longer than was required for the purpose of disclosure. The taxpayers’ personal data were removed from the list of major tax debtors once they had paid their tax debts or the limitation period had expired, as in the applicant’s case.

31. As regards the repercussions on and risk of harm to the enjoyment of private life of the persons concerned, the Court should have considered that, even accepting the applicant’s argument that he had a privacy interest in the non-disclosure of his home address combined with financial information about him, these repercussions did not appear excessive in the particular circumstances of the present case. We attach considerable weight in our assessment to the context in which those data were published. As described above, there is an obvious public aspect to tax collection and a taxpayer cannot reasonably expect that failure to settle his or her tax liabilities, especially in a field so much in the public eye as tax evasion, will remain a purely private matter. Thus, the interest in non-disclosure asserted by the applicant lay in practice not in preserving the privacy of purely personal matters, but rather in preserving his anonymity regarding his conduct as a taxpayer.

32. On the basis of the above considerations, we cannot find that the impact of the publication of the applicant’s personal data outweighed the convincing reasons justifying the general measure that are described above. In the circumstances of the present case we are persuaded that there were relevant and sufficient reasons for the publication of the applicant’s personal data and that the contested measure was subject to important limitations and was accompanied by effective and adequate safeguards against abuse. It was therefore not disproportionate to the legitimate aims pursued.

33. Accordingly, we conclude that there has been no violation of the applicant’s right to respect for his private life as guaranteed by Article 8 of the Convention.

[1] Commission decision of 26 July 2000 pursuant to Directive 95/46/EC of the European Parliament and of the Council on the adequate protection of personal data provided in Hungary (2000/519/EC).