C-369/98

* Original language: German. 1 — OJ 1992 L 181, p. 12.

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arable crops or publicly funded set aside in 5. The compensatory payment shall be the past;...'. granted under:

3. The arable crops in question are, pur- suant to Article 1, those listed in Annex I to the regulation.

(a) a "general scheme", open to all produ- cers, or

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5. Article 7 provides: grated administration and control system for certain Community aid schemes 2

'1. The set-aside requirement for each pro- ducer applying for compensatory payments under the general scheme is fixed:

— in the case of an individual base area, as a percentage reduction of his rele- vant base area. 6. According to the recitals in the preamble to this regulation, prior to its adoption 'the various aid schemes have been adminis- tered and controlled by the Member States under separate rules for each scheme, as a result of their heterogeneous structure;... however, in realigning the existing market measures as part of the reform of the common agricultural policy, the Commu- nity is opting, to a large extent, in both the crop and livestock sectors, for direct aid to The land set aside shall be subject to producers;... in order to adapt the admin- rotation...'. istration and control mechanisms to the new situation and improve their effective- ness and usefulness, it is necessary to set up a new integrated administration and con- trol system...'. The recitals in the preamble further provide that this new system should At the material time, the set-aside percen- both prevent and penalise irregularities. tage amounted to 10 % of the area con- The integrated administration and control cerned. system provides in particular that the Member States should establish computer- ised databases and store the data from aid applications.

(b) Council Regulation (EEC) No 3508/92 of 27 November 1992 establishing an inte- 2 — OJ 1992 L 355, p. 1.

'The Member States shall take the measures necessary to ensure protection of the data collected.' 3

(d) aid applications; (c) Commission Regulation (EEC) No 3887/92 of 23 December 1992 laying down detailed rules for applying the inte- grated administration and control system (e) an integrated control system.' for certain Community aid schemes 4

8. Article 3 10. As the recitals in the preamble to this regulation make clear, these rules of appli-

3 — The national provisions germane to the present case follow ' 1 . The computerised database shall record, from the Data Protection Act 1984. for each agricultural holding, the data 4 — OJ 1992 L 391, p. 36.

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2. The national administrative procedure within the relevant Agricultural Depart- ments".

11. The Divisional Court (hereinafter 'the national court') states the following with Because of this requirement on the UK base regard to the course of the national appli- form, in the first year when a farmer farms cations procedure: a particular parcel of land, he receives a blank Field Data Printout and is expected to obtain the information which would have been included on the Field Data Printout from sources other than MAFF. 6 In the event that a farmer is able to satisfy the Respondent that there are exceptional 'In the UK, applications for AAPs must be circumstances and that the farmer has made on an IACS form 5 which consists of exhausted all conventional means of two parts: a Base Form and a Field Data obtaining the information which is nor- Printout. The Field Data Printout lists each mally printed on the Field Data Printout, of the applicant's fields separately; for each the Respondent may disclose some of the field the farmer must state what crop is information on the Field Data Printout to growing on it or whether it is set aside. the farmer.' Each year the Respondent sends to all applicants for AAPs who remain in occu- pation of the same land a computerised printout on which the data given by them in the previous year's application is printed. The farmer need therefore make only the necessary changes in completing his IACS application. III— The facts

14. After Flint had recovered the farms at the end of October 1995, the applicants began to work them. They wished to set aside particular fields and apply for aid in respect of the fields thus set aside. 17. By the time that the applicants had received this information, they had already begun to sow part of the land. The remaining area was to be sown the follow- ing spring.

15. However, neither Mr Nicholson nor anybody acting on his behalf provided the applicants with information concerning the previous cropping history of the farms. The 18. On 3 May 1996 the applicants submit- applicants accordingly requested the ted to the competent authority their appli- respondent at the beginning of November cation form for compensatory set-aside 1995 to provide this information, since payments. They were informed on they were unable to obtain it from any 26 November 1996 that during the proces- other source. In particular, the applicants sing of their claim it had been established requested details as to which fields on the that two parcels of land which the appli- two farms were eligible for set-aside pay- cants had set aside were ineligible for set- ments and the field data printouts from aside payments on the basis of their pre- previous years. By letter of 7 November vious cropping history. Those payments 1995 the competent authority declined to therefore had to be disallowed. provide any of the information requested, citing the Data Protection Act 1984. It further stated that 'If under exceptional circumstances you are unable to obtain the necessary information from the sources suggested we will be able to consider releasing basic information relating to the 19. As a result of this, penalties were land'. imposed on the applicants pursuant to

21. In reply, the respondent argued that it could not have provided details of the crops cultivated since to do so would have constituted a breach of duty towards Mr Nicholson and the receiver. He was, however, obliged to use this information in order to verify whether the land which the IV — Questions submitted for preliminary applicants had set aside was in fact eligible ruling for aid.

(1)(i) Do Articles 3(1) and 9 of Regula- tion (EEC) No 3508/92, coupled with the general principles of Com- 22. The respondent further submitted in munity law, permit information the main proceedings — and the national held on a computerised database court had also so found — that the appli- set up under Article 2, relating to

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data supplied by or on behalf of a and as regards the information to be former claimant for payments disclosed: under AAPs, to be disclosed to third parties?

(c) to that information which does not constitute commercially confiden- tial information; and/or

V — Submissions of the parties tion 2 — failed to disclose the data requested, contrary to Regulation No 3508/92 and thus 'unlawfully', it was not entitled for that reason to impose penalties under Regulation No 3887/92. Further or alternatively, they submit, a 24. With regard to Question 1, the appli- clear and unambiguous legal basis for the cants argue that Article 3 of Regulation penalties is lacking. Finally, the competent No 3508/92 must be 'interpreted' as authority abused its powers and/or failed to imposing an 'obligation' on Member States respect the applicants' legitimate expecta- to ensure that the information stored on the tions and/or imposed a disproportionate computerised database may be consulted penalty. In any event, an authority cannot on application to the competent authority. rely on its own previous 'unlawful' conduct This interpretation is consistent with the as a basis for penalties. In view of the fact essential purpose of the regulation, with the that the applicants had unsuccessfully prevention of fraud, with the objectives of requested disclosure of specific data, the the common agricultural policy, and with same penalty could not be imposed on the general principles of Community law them as would be imposed in the case of such as transparency, non-discrimination, negligence and an innocent error. and protection of legitimate expectations and of the rights of the defence.

28. In the view of the United Kingdom which must follow the context and purpose Government, Article 3 (computerised data- of the integrated system. base) of Regulation No 3508/92 must be read in conjunction with Article 9 thereof (data protection). Since Article 9 requires compliance with data protection, Article 3 cannot confer free access to data. As the data are stored for administration and monitoring purposes, they may be con- 30. The United Kingdom Government sulted only by the authorities responsible accordingly proceeds on the basis that the for the administration of the integrated data collected must, as a general rule, system. This interpretation of Article 3 is remain confidential since applicants must borne out by the sixth recital in the also be assured that those data will be kept preamble to Regulation No 3508/92, only for administrative purposes and will, which states that computerised databases as a general rule, not be released to third are to be set up in order to allow cross parties. Exceptions to this may be made checks in particular to be made. 7 The only with the consent of the person con- intention of Article 3 is to enable the cerned or if an overriding public interest authorities to administer the integrated requires disclosure. Neither is the case in system properly, not to provide information the present instance. In the absence of any for agricultural producers. Data protection authorisation of disclosure by Mr Nichol- under Article 9 also relates to the confi- son, the competent authority was not in a dentiality of data, protected under Article 8 position to accede in full to the applicants' of the ECHR (protection of the right to request. However, in order to prevent privacy). The information supplied by penalties being imposed on the applicants, applicants is generally of a commercially a justifiable minimum of information on sensitive nature, supplied in confidence to field sizes was disclosed. A balancing of the the authorities. The disclosure of confiden- interests involved — protection of basic tial data is therefore restricted by Article 9. rights and freedoms, on the one hand, and the need to obtain the data in order to apply for compensatory payments, on the other — resulted in the disclosure of only these basic data.

33. The Commission takes the view that Community law did not in this case pre- clude disclosure of the information to the applicants. In this it proceeds on the basis that the applicants would have set aside 36. Third, the balancing of interests in the only eligible land had the competent present case leads to the result that the data authority made the requested information could have been disclosed. Regulation available. There are three arguments in No 3508/92, however, does not provide favour of disclosure of the information to any guidance on how to carry out such the applicants. balancing. Directive 95/46/EC of the Eur- opean 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 9— which is, however, not applicable to the present case — is more detailed in this regard. Under Article 7 of 34. First, the competent authority would this directive, data may be disclosed to a have disclosed the information to the third party if this serves the pursuit of applicants by way of its statement of legitimate interests and those interests are reasons for the imposition of the penalties, this being a procedural requirement. It is 8 — Emphasis added by the Commission in its written observa- thus unclear why this could not already tions. have been done at an earlier stage. 9 — OJ 1995 L 281, p. 31.

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not overridden by the interests or rights of No 3508/92, which would have excluded the person concerned. 10 any misuse by third parties, since such parties could not have linked the informa- tion thus supplied to the previous tenant (Mr Nicholson).

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VI — Analysis persons. As is clear from the sixth recital in the preamble, 12 the data are not only evaluated at the time of verification of the aid applications but are also used for purposes of checking which go beyond their administrative use. Checks can cer- tainly be carried out by a department other 1. Question 1 than that which processes the application. To that extent the United Kingdom Gov- ernment is correct in its argument, although, conversely, this consideration also does not lead to any general prohibi- 39. In Question 1 — which falls to be tion of disclosure to third parties. examined in conjunction with its sub- questions — the national court is essen- tially seeking to ascertain whether crop growers are, in the particular circumstances of the main proceedings, entitled to disclo- sure of information stored on a computer- ised database in accordance with Article 3 41. Nor is it possible to infer from Arti- of Regulation No 3508/92. The particular cle 9, which states that information is circumstances consist, inter alia, in the fact subject to data protection, whether the that the applicants for aid in the main competent authority can disclose informa- proceedings — who are also the applicants tion. There is some ground for arguing that in the present proceedings — wished to it can do so, since there would be no need farm the fields in question for the first time. for data protection if there were a general Article 9 (data protection) of Regulation prohibition of information disclosure. The No 3508/92 may preclude disclosure of reference to necessary measures may also information concerning the previous use indicate that disclosure of information made of those fields. cannot generally be excluded. At any rate, the wording of the two articles is not sufficiently clear to enable a reply to be given to the questions submitted.

legislation in question. 13 According to the a matter to be resolved in each individual recitals in its preamble, the purpose of case by balancing the relevant interests. Regulation No 3508/92 is to achieve more effective administration and control. Effi- ciency also includes a more rapid and simplified administrative procedure with- out major expense for the authorities, without queries and without subsequent corrections. These simplifications must also 44. The general principles governing data benefit the applicant, as follows from the protection also confirm this assessment.

In stances require relevant information from view of the fact that Article 9 does not itself the authority — that one can talk of an contain any further details concerning the efficient procedure. form and scope of data protection, it is in principle a matter for the Member States themselves to adopt the appropriate mea- sures. They may not, however, go beyond what is necessary to attain the objective. 15 This is also confirmed by the data-protec- 43. As is further evident from the recitals in tion directive, Directive 95/46. 16 Although the preamble, the purpose of Regulation it had not yet entered into force at the time No 3508/92 is not only to penalise irregu- of the events in the main proceedings, its larities but also to prevent them. From this provisions may none the less be adduced in particular it can be presumed that the for further consideration, since the data- authority is required, even before the protection directive — as stated in recitals application is submitted, to cooperate (10) and (11) — does not introduce any actively in ensuring that the details are new legal principles but rather gives sub- accurate, if need be through a correspond- stance to existing legal views. ing disclosure of information. This may in

'. . . so as to simplify the work as much as possible for 15 —Judgment in Adidas (cited above in footnote 13). farmers. . .'. 16 — Cited in point 36 and in footnotes 9 and 10.

46. For the present case this means that the much in need of protection as to be person requesting information must be incapable of disclosure. someone who directly requires the data in order to satisfy a requirement under Reg- ulation No 3508/92. It goes without saying that third parties such as private creditors, tax authorities or environmental agencies, 48. As a further condition, the interests of who may be interested in accessing the data the person requesting the information must for reasons other than those deriving from outweigh the interests of the person who the regulation, do not satisfy that condi- owns the protected data. This condition is tion. In contrast, a farmer as defined in also satisfied in the present case, since the Article 1(4) of Regulation No 3508/92, information was of considerable economic who requires the information for the and financial importance to the applicants. declaration which he must submit under The receipt of aid and the avoidance of Article 6 of that regulation, does have such penalties were both dependent on that an entitlement to that information. information. The applicants also suffered additional loss by virtue of the fact that land had mistakenly been set aside which would in all likelihood have otherwise been planted. In contrast, it is not clear what interests the previous tenant could still have had in non-disclosure of the data. Counsel for the applicants indicated during the oral 47. Next, it must be established that the procedure that the requested information person requesting the information cannot had been given to the applicants in the obtain the data in any other way. In the statement of reasons justifying the penal- present case, this is a matter which is no ties. It is, however, not clear why this longer in dispute. The respondent and the information, if it was disclosed (or had to national court are correct in saying that, be disclosed) subsequently, could not have when they inspected the farms in the been provided at an earlier point in time. summer of 1995 — in connection with the details which were in fact later provided by the authority — the applicants could have determined what had been planted by the previous tenant. It is irrelevant why 49. It must also be established that there is they failed to make relevant notes at that no danger that disclosure will adversely time. Possibly — the landowner, after all, affect the owner of the data. Nothing on did not regain possession of the two farms the file suggests this to be the case. until late October 1995 — they were Alphanumeric disclosure — in codified themselves unable to harvest the fields as form — of the information requested might they had originally intended. The fact that also have been envisaged for the purpose of they did not make the requisite determina- avoiding any adverse effect. tions earlier, that is to say, in the summer of 1995, cannot be held against them. In contrast, however, the fact that it was visually possible to ascertain what the previous tenant had planted indicates that 50. It is, however, the function of the the requested data could not have been so national court to determine whether the

54. The facts of the present case, however, differ from those in National Farmers' Union inasmuch as the applicants here had requested from the competent author- ity data which they could not otherwise obtain, in order that they could make a 2. Question 2 proper application for compensatory pay- ments. Only subsequently did they give false details. The respondent argued that he was obliged to impose the penalties in the 52. In Question 2, the national court is absence of any discretion in the matter. I essentially asking whether there was no cannot accept this view that imposition was right to impose penalties under Article 9 of mandatory. It follows from the fourth Regulation No 3887/92 in this case pre- subparagraph of Article 9(2) of Regulation cisely because the competent authority had No 3887/92 — cited above in point 10 — itself failed to disclose the information that reductions are not to be applied 'if the requested to persons who had otherwise farmer can show that his determination of acted properly and correctly. the area was accurately based on informa- tion recognised by the competent author- ity'. The authority will thus in all likelihood be estopped by its own conduct if the aid

53. According to the Court's case-law, the 17 — Case C-354/95 The Queen v Minister for Agriculture, Fisheries and Food, ex parte National Farmers' Union and penalties set out in Article 9 of Regulation Others [1997] ECR I-4559.

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56. In Question 3, the national court seeks to ascertain whether, in the imposition of penalties, information could be used against the person concerned, disclosure 55. In view of the fact that this case also of which to that person had been refused involves the application of Community law, despite a request to that effect. In view of so far as the provisions of Regulations the reply to the first two questions, it is No 3508/92 and No 3887/92 are con- unnecessary to answer this question. The cerned, there must be compliance with the use of the undisclosed data for the purpose general principles of law regarding legal of imposing a penalty would also not be certainty, legality of administrative action, possible. If the information was disclosed protection of the rights of the defence, and as part of the statement of reasons under- proportionality. It follows that an authority lying the penalties and thereby made pub- may not, as a matter of principle, invoke lic, this would be equivalent to subsequent previous unlawful conduct for the purpose disclosure and would thus — as indicated of imposing penalties. It would be incom- above — stand in contrast to the author- prehensible if the authority could impose ity's own previous conduct. The outcome penalties if it was previously aware, would be the same if the information because of the request made to it, that the originally refused had not been included applicant had no data and was unable in the statement of reasons. The latter otherwise to obtain such data at the time would then have been incomplete and it when the application was made, with the would be necessary to agree with the result that it could be assumed that the Commission that in this case the imposition information contained in the application of a penalty would also not have been for aid would in all likelihood be false. In lawful, in particular because it would have such a case of inaction, the authority infringed the rights of the defence.

— this is necessary to enable him to make a proper application for compensatory payments in respect of the setting-aside of land;

— the data cannot otherwise be obtained;

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— greater weight attaches to the interests of the new holder than to those of his predecessor; and

— it is unlikely that the previous farmer will be adversely affected by disclosure of the data.