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conflict between transparency and rights to protection of personal data November 10, 2010

Posted by Bradley in : transparency , trackback

Transparency is a Good Thing, but the EU’s Court of Justice has held in Volker und Markus Schecke GbR (Cases C-92/09 and C-93/09) that the publication of details of the recipients of agricultural aid, while promoting transparency, conflicts with the recipients’ rights to protection of their personal data. The Court stated that by aiming to increase the transparency of the use of funds in the context of the CAP, the relevant regulations did pursue an objective of general interest recognized by the European Union, however the EU institutions did not satisfy the requirements of proportionality because they did not balance transparency with aid recipients’ rights to protection of their personal data:

Regard being had to the fact that derogations and limitations in relation to the protection of personal data must apply only in so far as is strictly necessary.. and that it is possible to envisage measures which affect less adversely that fundamental right of natural persons and which still contribute effectively to the objectives of the European Union rules in question, it must be held that, by requiring the publication of the names of all natural persons who were beneficiaries of EAGF and EAFRD aid and of the exact amounts received by those persons, the Council and the Commission exceeded the limits which compliance with the principle of proportionality imposes.

Legal persons don’t have the same sort of rights, so publication of information about their receipt of aid is acceptable. Corporations don’t have the same sort of rights to private life that natural persons do. And presumably this would apply even where the legal person had one owner. Another factor to bear in mind when deciding whether or not to incorporate. The Court says legal persons are in any case subject to “a more onerous obligation in respect of the publication of data relating to them.”

Because many disclosures have been made based on an understanding that the regulations providing disclosure were valid, the Court limits the ability of those subject to past disclosure to bring claims:

In view of the large number of publications which have taken place in the Member States on the basis of rules which were regarded as being valid, it must be held that the invalidity of the provisions mentioned in paragraph 92 of the present judgment does not allow any action to be brought to challenge the effects of the publication of the lists of beneficiaries of EAGF and EAFRD aid carried out by the national authorities on the basis of those provisions during the period prior to the date on which the present judgment is delivered.

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