Tuesday 9 November 2010

Tunnel! Light! Action?

Is there any connection between the EU's Common Agricultural Policy (CAP) and data retention? You wouldn't have thought so, would you? And yet there might be.

After spending the day reading the European Court of Justice's decision in the case of Volker und Markus Schecke GbR v Land Hesse, Cases C-92/09 and C-93/09, Matron is intrigued by the pin-sized point of light that this judgement may shine on the question of how that court might deal with the question of whether the blanket retention of traffic data complies with the provisions of the European Convention on Human Rights (ECHR) and the EU's Charter of Fundamental Rights. If it ever gets to decide on that question, that is. But that is another matter entirely and for the moment lets not go there.

The ECJ decision in question relates to a reference to the ECJ from a German court, in which it was asked to consider whether EU legislation which requires the disclosure and publication on a publicly available and searchable website of the amounts awarded to farmers from CAP funds, together with their names, municipality of residence and postcode, was invalid. The applicants in the main proceedings clearly thought that it was because it enabled third parties to deduce the applicants' income of which 30-70% came from CAP funds.

The court - sort of - came down on the side of the applicants when it held that the wide-ranging publication requirement imposed by the relevant EU legislation violated their right to privacy and data protection because it was disproportionate to the EU's stated aim of increasing transparency of the use of funds in the context of the CAP. Whether this will actually help the applicants in practice remains to be seen as the ECJ did not entirely condemn the publication of that data. It merely concluded that it should be published in a more privacy friendly way that draws a distinction based on relevant criteria such as the periods during which recipients received CAP aid, the frequency of such aid or the nature and amount of aid. Which probably means that any halfway competent internet surfer will still be able to find out what amount of CAP aid an individual has received in any given period.

However, the decision is interesting for a number of other reasons:

  1. For a start, the ECJ made some very encouraging comments on the status of the Charter of Fundamental Rights both within the EU legal framework and within the framework governing the protection of fundamental rights and freedoms. This is one of the first decisions looking at questions of human rights compliance of EU legislation since the Lisbon Treaty - and with it the Charter - came into force, and the ECJ seems to use this decision to set out its stall on how it intends to apply the Charter in its interpretation of EU secondary legislation in the future. To this end, it confirms that the validity of such legislation must now be assessed in the light of the provisions of the Charter.
  2. The ECJ also confirms the Charter's premise (in Article 52) that insofar as rights guaranteed in the Charter correspond to rights contained in the ECHR, the meaning and scope of those Charter rights as well as any limitations placed on them must be interpreted in line with the corresponding rights in the ECHR. This creates a neat little connection between the Charter and the ECHR which will allow the ECJ to draw heavily upon the entire body of case law created by the European Court of Human Rights in Strasbourg (although, to an extent the ECJ has, of course, frequently referred to that case law already and the really interesting question is what will happen if the two courts disagree. But that question, too, is for another day).
  3. The ECJ confirms that a provision requiring the "general publication" of personal data on a website prima facie constitutes an interference with the applicants' right to privacy and data protection and that this interference, while "as provided by law" is disproportionate to the aim of increasing transparency that the EU seeks to achieve. The ECJ held that the EU institutions must balance the EU's interests with those of the affected individuals when adopting provisions that interfere with the rights to privacy and data protection. In particular, the decision makes it clear that the EU's objectives do not enjoy an automatic priority over the rights of the individuals and that the mere failure by the EU institutions to consider less intrusive methods of interference will lead to the invalidity of the contested provisions.

So why does this give Matron hope when it comes to data retention? Well, the situation there is actually very similar to the present case. Opponents of data retention have argued for a long time (including during the very brief legislative process that led to the adoption of the Data Retention Directive) that the blanket retention of communications data of the entire population is disproportionate to the aim of improving public and national security on the grounds that, among other things, the less intrusive means of data preservation or data freeze (where providers are required to retain traffic data relating to a specific event for a specific period of time AFTER the event) exist. Many countries are using this form of data preservation quite successfully.

And yet, that method has never been properly considered by the EU institutions as a viable alternative to the current regime, no empirical evidence has ever been collected as to why the blanket retention we now all have to live with is necessary (or even more likely than data preservation) to achieve the stated objective. On the basis of the ECJ's contention that even the mere failure to consider less intrusive means could render a provision invalid, one could clearly argue that the EU institutions' rushed adoption of Data Retention Directive should be examined in this light.

So a hundredth of a smidgen of a glimmer of hope here? Time will tell. One institution that should certainly take note is the European Commission which is still dragging its feet on the publication of its report on the current regime. Unless the member states come up with very good statistical proof that data retention actually works, it becaomes more and more difficult to see how a reasonable claim could be made that the provisions of the Directive are human rights complaint.

"Reasonable" being the operative word here, of course.

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