C-465/00

I - 4994 ÖSTERREICHISCHER RUNDFUNK AND OTHERS

3 — This provision is repeated by Article 7 of the C h a r t e r of fundamental Rights of the European Union, which provides that '[e]veryone has the right to respect tor his or her private and family lite, home and communications'. Referring specifically to the protection of personal data. Article 8 of the Charter then states: ' 1 . Everyone has the right to the protection of personal data concerning him or her. 1. Such data must he processed fairly for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law. Everyone has the right of access to data which has been collected concerning him or her. and the right to have it rectified, 3. Compliance with these rules shall be subject to control 5. That having been said, the Community by an independent authority.' legislature considered that, in establishing a

I - 4995

OPINION OF MR TIZZANO — JOINED CASES C-465/00, C-138/01 AND C-139/01

I - 4996 ÖSTERREICHISCHER RUNDFUNK AND OTHERS

(c) 'controller' means the 'natural or legal 9. For present purposes, certain provisions person, public authority, agency or any of Chapter II, 'General Rules on the other body which alone or jointly with Lawfulness of the Processing of Personal others determines the purposes and Data' (Articles 5 to 21), should also be means of the processing of personal noted. It should be pointed out in particular data'. that, according to Article 6(1), 'Member States shall provide that personal data must be:

provides, so far as we are concerned here, The Austrian legislation that processing is permitted where it is necessary 'for compliance with a legal obligation to which the controller is sub- ject' or 'for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller or in a third party to whom the data are disclosed'. 13. Paragraphs 126b, 126c, 127, 127a and 127b of the Bundesverfassungsgesetz (the Austrian Constitution; hereinafter 'B VG') govern the powers of the Rechnungshof (the Austrian Court of Auditors), making the following subject to audit by it: the Federation; the Länder; major communes and — where a reasoned request has been made by a government of a Land — communes with fewer than 20 000 inhabit- ants; associations of communes; social 11. It should also be noted that Article 13 security institutions; statutory bodies rep- authorises Member States to derogate from resenting professional interests; entities, certain provisions of the Directive and, in funds and foundations managed by organs particular, from Article 6(1), where it is of the Federation or Länder or by persons necessary to safeguard, among other things, appointed for that purpose by organs of the 'an important economic or financial inter- Federation or Länder, and undertakings est of a Member State or of the European managed by the Federal Government, a Union, including monetary, budgetary and Land or commune or (alone or jointly with taxation matters' [subparagraph (e)]; or 'a other legal entities subject to audit by the monitoring, inspection or regulatory func- Rechnungshof) controlled through a share- tion connected, even occasionally, with the holding of not less than 50%. Furthermore, exercise of official authority' in specific Paragraph 31a(1) of the Rundfunkgesetz cases, including one as described in (Law on broadcasting) 4 provides that subparagraph (e) [subparagraph (f)]. Österreichische Rundfunk (Austrian National Radio; hereinafter: 'ÖRF') also is subject to audit by the Rechnungshof.

' 1 . Entities subject to audit by the Rech- nungshof must, within the first three months of each second calendar year, 15. From the preparatory documents for inform the Rechnungshof of the salaries the law we see that the above report must or pensions of persons which in at least one show the name of the employee and the of the two previous calendar years, were amount of salary received; the report must greater in that year than 14 times 80% of then be made available to the public so as the monthly reference amount under Sec- to ensure 'full information for Austrian tion 1 [meaning, for 2000, salaries or citizens on salaries received in public p e n s i o n s 14 t i m e s g r e a t e r t h a n entities'. 6 EUR 5 887.87]. The entities must also inform the Rechnungshof of salaries and pensions of persons who receive an addi- tional sum or pension from an entity subject to audit by the Rechnungshof.... If entities do not comply with that duty of disclosure, the Rechnungshof shall inspect the relevant documents and draw up its Facts and Proceedings report on the basis thereof.

Facts and questions referred in Case C-465/00

16. The origin of Case C-465/00 lies in a dispute over the i n t e r p r e t a t i o n of 3. The Rechnungshof shall summarise that Paragraph 8 of the BezBegrBVG between information — for each year — in a the Rechnungshof and a number of bodies report. The report shall include all persons

6 — Draft Law and Report from Parliamentary Commission, 5 — BGBl. I 64/1997. 453/A and 687 BlgNR, 20. GP.

I - 4999

OPINION OF MR TIZZANO — JOINED CASES C-465/00, C-138/01 AND C-139/01

(a) a regional or local authority,

18. The Rechnungshof then applied to the Verfassungsgerichtshof, seeking confirma- tion of its power to conduct the examin- ation on the premises of the entities cited, for the purpose of drawing up the report on incomes specified in Paragraph 8 of the (b) a broadcasting organisation governed BezBegrBVG. The defendant entities by public law,

I - 5000 ÖSTERREICHISCHER RUNDFUNK AND OTHERS

(c) a national central bank, in Paragraph 8 of the BezBegrBVG. Under that provision, ÖRF is therefore required to give the Rechnungshof the data relating to their pay.

(d) a statutory body representing its mem- bers' interests,

21. Ms Neukomm and Mr Lauermann both applied, separately, to the Arbeits- und Sozialgericht, Vienna, and to the Landesgericht, St Polten, seeking emerg- (e) a partially State-controlled undertak- ency measures to prevent ÖRF from pas- ing? sing on their data with their names. In support of their applications, so far as concerns this case, the applicants alleged breach of their fundamental rights (in particular the right to respect for private life as laid down in Article 8 of the ECHR) 2. If the answer to at least part of the and of the provisions of the Directive. In above question is in the affirmative: the course of the two proceedings, the ÖRF — although asking for the appli- cations to be dimissed, — declared that it took the same standpoint as its own employees.

[Articles 1, 2, 6, 7 and 22 of Directive ments of Austria, Denmark, Finland, Italy, 95/46/EC in conjunction with Article 6 the Netherlands, Sweden and the United (ex Article F) of the EU Treaty and Kingdom whilst, in Cases C-138/01 and with Article 8 of the European Con- C-139/01, joined by order of 17 May 2001, vention for the Protection of Human observations were submitted by the Com- Rights], to be interpreted as precluding mission and the Governments of Austria, national rules which require a broad- Italy, the Netherlands, Sweden and the casting organisation governed by pub- United Kingdom. lic law acting as an entity recognised by law to pass on data concerning the incomes of its employees and a State body to collect and to pass on such data for the purpose of publishing the names and incomes of those employees. 24. A joint hearing in the three cases was held on 18 June 2002, in which the Commune of Kaltenleutgeben, the Land Niederösterreich, the Österreichische Nationalbank, Austrian Airlines, ÖRF, the Commission and the Governments of Aus- 2. If the Court of Justice of the European tria, Finland, Italy, the Netherlands and Communities answers the question put Sweden participated. in the affirmative: are the provisions precluding national rules as described above directly applicable, in the sense that the entity obliged to disclose data may rely on them in order to prevent the application of conflicting national rules and therefore may not rely upon an obligation imposed by national law as regards the employees concerned by the disclosure'. Legal analysis

26. In answering the questions set out in 28. I note here that, under Article 3, the the three orders for reference (which I shall provisions of the Directive do not apply to of course discuss together), it is therefore all 'processing of personal data'; for present necessary to consider, first, whether purposes, in particular, they do not apply national rules such as those at issue are to processing 'in the course of an activity compatible with the provisions of the which falls outside the scope of Community Directive and, second, whether such rules law' (first indent of Article 3(2)). Assuming infringe the general principles of Commu- that the various operations prescribed in nity law regarding privacy. Then, if it is Paragraph 8 of the BezBegrBVG (collection found that those rules do infringe the of data on salaries and pensions, provision provisions of the Directive or the principles of data to the Rechnungshof, inclusion in concerning privacy, it will then be necess- the report, submission of the report to the ary to consider also whether those provi- competent bodies and publication of the sions and principles are directly applicable. report) entail 'processing of personal data', almost all of the participants in the pro- ceedings before the Court, and the referring courts themselves, have therefore dwelt at length on the question whether or not the activities for which that processing has been effected do fall 'outside the scope of Community law', within the meaning of the first indent of Article 3(2). Only if they do fall within its scope can it be held that Compatibility of national rules such as such processing is covered by the provisions those at issue with the provisions of the of the Directive. Directive

30. Although they recognise that the point 32. With particular reference to the latter is disputed, the national courts appear aspect, it is maintained that, on the one inclined to hold that the Directive also hand, audit by the Rechnungshof adversely covers processing of the type in point, since affects the possibility for the employees of it effected full harmonisation in this area in the entities concerned to seek work in order to ensure full 'protection of] the another Member State (presumably fundamental rights and freedoms of natural because publication of their salaries would persons, and in particular their right to restrict their negotiating power vis-à-vis privacy with respect to the processing of foreign companies) and, on the other hand, personal data' (Article 1(1)). They further it discourages citizens of other Member observe that the Rechnungshof's audit States wishing to move to Austria to work activities, for which the processing now for the entities subject to audit by the under consideration is effected, may fall Rechnungshof. within the scope of Community law because it may have an effect on freedom of movement for workers (Article 39 EC), particularly since such an audit is required even of a public company which is in competition with (national and foreign) operators which are not required to make 33. More specifically, then, the Austrian public the data on their employees' salaries. Central Bank claims that the impairment of free movement of workers is aggravated by the fact that the audit also relates to the branches of the entities concerned located in other Member States, whilst Austrian Airlines claims that that impairment is of particular importance to it, since it is in competition with airlines of other Member States that are not subject to any similar audit. 31. Naturally, the entities which are defen- dants before the Verfassungsgerichtshof think likewise. Essentially, albeit with 7 — In this connection, reference was made in particular to minor variations, they consider that the Articles 136 EC, 137 EC and 141 EC, to Council Directive 76/207/EEC of 9 February 1976 on the implementation of Rechnungshof's audit activities fall within the principle of equal treatment for men and women as the scope of Community law because, as regards access to employment, vocational training and promotion, and working conditions (OJ 1976 L 39, p. 40) they affect the working conditions of the and Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employees of the entities concerned, they employed persons and their families moving within the touch on aspects governed in part by Community (OJ, English Special Edition 1971 (II), p. 416 ).

35. On the other hand, the observations submitted by the Rechnungshof and by Austria and Italy are to the opposite effect. For them, the audit activity prescribed by Paragraph 8 of the BezBegrBVG is the 37. In its written observations submitted in expression of an autonomous power of the Case C-465/00, the Commission main- State, clearly intended for the pursuit of tained that the Directive does not apply to objectives of general interest in the field of processing such as that at issue, because it public accounts and thus does not fall is effected in the course of an audit of within any aspect of Community law. accounts which falls outside the scope of These parties add that the Directive, Community law. That audit activity is adopted under Article 100a of the EC concerned with national budgetary policy Treaty, essentially pursues the objective of which, apart from certain restrictions laid realisation of the internal market, in down in the context of the economic and relation to which protection of the right monetary union, is not regulated at Com- to privacy is merely incidental. They munity level and therefore remains essen- further contend that that audit is not such tially within the competence of the Member as to hinder the free movement of workers, States. Furthermore, the Commission con- because it does not prevent the employees tinues, there is no question either of the of the entities concerned from moving to activity concerned falling within the scope work in another Member State, or workers of Community law as a result of its possible from other Member States from becoming effect on the functioning of the internal employees of those entities. market. This is so, in particular, because (i) the report on incomes and publication thereof involves no cross-frontier process- ing of data; (ii) the assumed competitive disadvantage for undertakings subject to audit by the Rechnungshof is in any case negligible; and (iii) the influence of the legislation at issue on the choices made by workers is too indirect and uncertain for it 36. For its part, the Commission has not actually to represent a barrier to their taken a clear and unambiguous position on movement within the Community.

38. In its written observations submitted those data to the Rechnungshof; the Rech- later in Joined Cases C-138/01 and nungshof's inclusion of them in its report; C-139/01, the Commission essentially the sending of the report to the Parliament repeats the view that the Rechnungshof's and publication of the report. The four activities fall outside the scope of Commu- latter processes are not covered by the nity law. However, it added that the provisions of the Directive, in the sense processing effected by the entities subject contemplated in Article 3(2), as they are to audit by the Rechnungshof by means of carried out in the course of an accounting- collecting the data on their employees' audit activity outside the scope of Commu- salaries is actually carried out in the course nity law. However, departing from what it of two separate activities: the first is the had maintained earlier, at the hearing the payment of those salaries and falls within Commission observed that the first of the the scope of Community law because it processes, where the entities subject to may have an effect on free movement of audit collect the data, does fall under the workers and on the principle of equal pay provisions of the Directive. The reason for for male and female workers (Article 141 that is that it is carried out (only) for the EC); the other is the passing on of the data payment of salaries and, thus, for an concerned to the Rechnungshof for writing activity which falls within the scope of of the report referred to in Paragraph 8 of Community law, firstly because it may the BezBegrBVG — and that activity, as have an effect on the free movement of maintained earlier, falls outside the scope workers and, secondly, because it is rel- of Community law. Since the former activ- evant to the implementation of various ity is 'obscured' by the accounts-audit Community provisions on social matters activity (for which subsequent processing (in particular Article 141 EC). But if such is effected by the Rechnungshof), the Com- data are re-used also for the accounting- mission submitted that the collection of audit activity, they would then be 'further data on incomes likewise is not processing processed' within the meaning of covered by the provisions of the Directive. Article 6(1)(b) of the Directive and the lawfulness of that processing must be con- sidered in the light of the derogations set out in Article 13.

agree with the Commission that years were greater in that year than 14 Paragraph 8 of the BezBegrBVG essentially times 80% of the monthly reference prescribes rive forms of processing: collec- amount', taking account also of any other tion of data on salaries and pensions by the salaries and pensions received from other entities concerned; passing those data to the entities subject to audit by the Rechnungs- Rechnungshof; the Rechnungshof's inclu- hof. This is therefore a special processing of sion of these in its report; the sending of the the data held by those entities and report to the Parliament and the other assuredly it must not be confused with competent bodies and publication of the other forms of processing which those report. However, I do not agree with the entities must normally carry out in manag- Commission's contention in its second set ing their accounts and in paying salaries to of written observations, and at the hearing, all employees. And that is because, unlike as regards the first of those forms of those forms of processing, this is a form of processing (collection of data by the entities processing for a particular purpose, specifi- subject to audit by the Rechnungshof); that cally and exclusively intended to permit the is to say, I do not believe that the entities accounting-audit activity prescribed in concerned effect this form of processing for Paragraph 8. the payment of salaries to their employees or, as a result, for an activity which, in the Commission's view, falls within 'the scope of Community law' for the purposes of Article 3(2) of the Directive — unlike the activity for which the four other processes are intended. 42. That having been made clear, in order to establish whether the five forms of processing required by Paragraph 8 of the BezBegrBVG are covered by the provisions of the Directive, it is now necessary to inquire whether the Rechnungshof's audit activity for which they are intended falls within 'the scope of Community law' within the meaning of Article 3(2) of the Directive. 41. It seems to me that Paragraph 8 of the BezBegrBVG does impose on the entities subject to Rechnungshof audit a processing which is different and additional to that which they normally carry out in the management of their accounts, for the purpose of paying salaries to their employees: the first of the forms of process- 43. I believe that that question must be ing required in that provision in effect answered in the negative. The Rechnungs- involves the selection and extrapolation, hof undertakes this activity for the purpose from all the data to be found in those of ensuring 'full information for Austrian entities' accounts, of the data relating to the citizens on salaries received in public enti- salaries and pensions 'of persons which in ties' and so to encourage proper manage- at least one of the two previous calendar ment of public resources. It is therefore, as

44. Nor do I think that this conclusion is affected by the opposing arguments raised in an attempt to bring the activity of the Rechnungshof within the scope of Com- munity law. To that end, as we have seen, 46. Next, I find that the attempt to bring particular emphasis has been placed on the that activity within the scope of Commu- alleged relevance of that activity for certain nity law by invoking its possible effect on provisions of the Treaty and of secondary the freedom of movement for workers, law, but I do not think that any of the guaranteed by Article 39 EC, is strained hypotheses invoked are well founded. and in any event not convincing. I would observe, as a preliminary point, that the orders for reference reveal no cross-border elements which might justify applying that article to the cases in the main proceedings except, at most, on a hypothetical basis: but that is in conflict with the case-law of the Court according to which '[a] purely 45. First of all, apart from making a hypothetical prospect of employment in general reference, no-one has really been another Member State does not establish a able to explain what relevance that activity sufficient connection with Community law can have from the standpoint of to justify the application of Article 48 of Article 141 EC. Given that the activity the Treaty [now Article 39 EC]'. 10 relates without distinction to the data on workers of either sex, it is, specifically, not possible to see in what way the audit by the 8 — Council Directive 76/207, cited in footnote 7. Rechnungshof might affect application of 9 — Council Regulation No 1408/71, cited at footnote 7. 10—Judgment in Case 180/83 Moser [1984] ECR 2539, the principle of equal pay enshrined in that paragraph 18. On this, see also the judgments in Case provision. Nor can I understand what 175/78 Saunders [1979] ECR 1129; in Case C-332/90 Steen [1992] ECR I-341; and in Joined Cases C-64/96 and relationship there can be between the audit C-65/96 Uecker and Jacquet [1997] ECR I-3171.

47. But even leaving that point aside, I argument of the ÖRF to the effect that the believe that the rules at issue here also Rechnungshof's audit activity falls within cannot properly be described as an obstacle the scope of Community law because to freedom of movement for workers. Paragraph 8 of the BezBegrBVG must be Given that they relate equally to national characterised as a provision implementing and to foreign workers, it seems to me that the Directive. In reality, that provision does any possible influence on workers' not lay down rules of a general nature on decisions that they may have is too uncer- processing of personal data, for the purpose tain and indirect for it really to constitute of transposing the provisions of the Direc- an obstacle to workers' movement for the tive; it only requires specific forms of purposes of Article 39 EC. In that con- processing which are strictly necessary for nection, I would recall that the case-law of the carrying out of the audit activity of the the Court, while accepting that '[p]rovi- Rechnungshof. If one is not to engage in a sions which, even if they are applicable circular argument and in any case contra- without distinction, preclude or deter a dict the underlying objective of Article 3(2), national of a Member State from leaving one cannot regard as a provision transpos- his country of origin in order to exercise his ing the Directive any national provision right to freedom of movement... constitute whatever which requires the processing of an obstacle to that freedom', has made it personal data and then, from that premiss, clear, however, that, 'in order to be capable infer that every form of processing pre- of constituting such an obstacle, [such scribed by a national provision is covered provisions] must affect access of workers by the provisions of the Directive because, to the labour market'. 11 Accordingly, as by definition, it is carried out in the course observed in particular by the Austrian of an activity that falls within 'the scope of Government, even if audit by the Rech- Community law'. nungshof may perhaps rank among the factors taken into consideration by some workers in making their professional decisions, it clearly does not affect either access by workers from other Member States in Austria to employment with the entities concerned nor access by the employees of those entities to the employ- ment market in the other Member States.

50. Nor, moreover, do I believe that it can particular the right to privacy' (ninth be objected here, as the national courts recital). appear to do, that the Directive must also be applied in similar cases because it is intended to guarantee '[protection of] the fundamental rights and freedoms of natural persons, and in particular their right to privacy with respect to the processing of personal data' (Article 1(1)). 52. It is indeed true that, in determining that level of protection 'equivalent in all Member States', the legislature took account of the need to safeguard 'the fundamental rights of individuals' (second and third recitals), with the aim of ensuring a 'high level' of protection (tenth recital). But the context and the purpose of all this was still the attainment of the principal objective of the Directive, that is the intention of encouraging the free movement of personal data, since that was considered to be 'vital to the internal market' (eighth 51. As I have observed before, in my recital). Opinion in Case C-101/01, Lindqvist, the Directive was adopted on the basis of Article 100a of the Treaty in order to encourage the free movement of personal data by the harmonisation of the laws, regulations and administrative provisions of the Member States on the protection of natural persons with regard to the process- 53. The safeguarding of fundamental rights ing of such data. In particular, the Com- constitutes therefore an important value munity legislature sought to establish a and a requirement taken into account by level of protection 'equivalent in all the Community legislature in delineating Member States', in order to remove the the harmonised system needed for the obstacles to flows of personal data deriving establishment and functioning of the inter- from the difference in levels of protection nal market, but it is not an independent of the rights and freedoms of individuals, objective of the Directive. If it were, it notably the right to privacy,... afforded in would have to be accepted that the Direc- the Member States (seventh and eighth tive is intended to protect individuals with recitals). The intention here was that, respect to the processing of personal data following adoption of the harmonisation even quite apart from the objective of directive, 'given the equivalent protection encouraging the free movement of such resulting from the approximation of data, with the incongruous result that even national laws, the Member States [would] forms of processing carried out in the no longer be able to inhibit the free course of activities entirely unrelated to movement between them of personal data the establishment and functioning of the on grounds relating to protection of the internal market would also be brought rights and freedoms of individuals, and in within its scope.

55. On that point, I would note that 56. In the light of all the foregoing con- recently, in its judgment annulling Direc- siderations, I therefore consider that forms tive 98/43/EC 12 as having no legal basis, of processing of personal data prescribed in the Court had occasion to explain that 'the legislation such as that at issue are not measures referred to in Article 100a(1) of covered by the provisions of the Directive, the Treaty are intended to improve the since they are carried out 'in the course of conditions for the establishment and func- an activity which falls outside the scope of tioning of the internal market. To construe Community law' within the meaning of that article as meaning that it vests in the Article 3(2) of the Directive. Consequently, Community legislature a general power to such legislation cannot be held to be regulate the internal market would not only incompatible with the provisions of the Directive. 12 — Directive 98/43/EC of the European Parliament and of the Council of 6 July 1998 on the approximation of the laws, regulations and administrative provisions of the Member 1 3— Judgment in Case C-376/98 GERMANY v Parliament and States relating to the advertising and sponsorship of Council [20001 ECR I-8419, paragraph 83. fobacco products (OJ 1998 L 213, p. 9). 14 — Opinion 2/94 [1996] ECR I - 1 7 5 9 ,paragraph 27.

I-5011

OPINION OF MR TIZZANO — JOINED CASES C-465/00, C-138/01 AND C-139/01

Compatibility of national legislation such legislation with the fundamental rights... as that at issue with the general principles whose observance the Court ensures. How- of Community law regarding privacy ever, the Court has no such jurisdiction with regard to national legislation lying outside the scope of Community law'. 16

The questions on the direct applicability of the provisions of the Directive and of the 58. On this point, I must observe that general principles of Community law on where 'national legislation falls within the privacy field of application of Community law the Court, in a reference for a preliminary ruling, must give the national court all the guidance as to interpretation necessary to enable it to assess the compatibility of that 60. Having regard to the conclusions which I have reached in the foregoing paragraphs, I consider that there is no need to discuss 15 — As we know, 'according to settled case-law, fundamental rights form an integral part of the general principles of law, the questions on direct applicability of the whose observance the Court ensures. For that purpose, the Court draws inspiration from the constitutional traditions provisions of the Directive and of the common to the Member States and from the guidelines general principles of Community law on supplied by international treaties for the protection of human rights on which the Member States have collabor- privacy. ated or to which they are signatories. The ECHR has special significance in that respect' (judgment of the Court in Case C-274/99 P Connolly v Commission [2001] ECR I-1611, paragraph 37). To the same effect, see also Article 6(2) EU, according to which '[t]he Union shall 16 — Judgment in Case C-299/95 Kremzow [1997] ECR I-2629, respect fundamental rights, as guaranteed by the European paragraph 15. To the same effect see also the judgment in Convention for the Protection of Human Rights and Case C-159/90 Society for the Protection of Unborn Fundamental Freedoms signed in Rome on 4 November Children Ireland v Grogan and Others [1991] ECR I-4685, 1950 and as they result from the constitutional traditions paragraph 31, that in Case C-309/96 Annibaldi [1997] common to the Member States, as general principles of ECR I-7493, paragraph 13, and the order in Case Community law'. C-361/97 Nour [1998] ECR I-3101, paragraph 19.