Abstract
The Utrecht Law Review is an open-access peer-reviewed journal which aims to offer an international academic platform for cross-border legal research. In the first place, this concerns research in which the boundaries of the classic branches of the law (private law, criminal law, constitutional and administrative law, European and public international law) are crossed and connections are made between these areas of the law, amongst others from a comparative law perspective. In addition, the journal welcomes research in which classic law is brought face to face with not strictly legal disciplines such as philosophy, economics, political sciences and public administration science.The journal was established in 2005 and is affiliated to the Utrecht University School of Law. If you wish to receive e-mail alerts please join the mailing list.
Highlights
Austria (C-614/10) Since 1978 – when Austria adopted, for the first time, a national Data Protection Act – the structure of its national supervisory authority (Datenschutzkommission, DSK) thereby established[1] remained unchanged in its essence: following the model of ‘mixed councils’, the independent administrative tribunals of the time,[2] it has been composed of one judge, one official of the federal administration, two officials of the civil services of the federal states (Länder), and, since 2000,3 two members nominated by the social partners
One member has to carry out daily business (‘managing member’), staff and infrastructure have to be provided by the Federal Chancellor (Prime Minister)
The DSK itself never referred, under Article 267(2) TFEU or its predecessors, to the Court of Justice, other Austrian ‘mixed councils’ – all organized more or less in the same way4 – had been accepted by the Court’s case law as fulfilling the necessary requirements of a ‘court or tribunal of a Member State’ within the meaning of this provision;[5] among the ‘factors’ taken into account for the purpose of that assessment, we read that the body in question has to be ‘independent’. It was not far-fetched to presume that the DSK, as a ‘mixed council’, is sufficiently ‘independent’ in the sense of
Summary
–– ‘In view of the fact that Article 44 of Regulation No 45/2001’ (in the following: the Regulation) – the first paragraph of which states the ‘complete independence’ of the European Data Protection Supervisor (EDPS) – ‘and Article 28 of the Directive 95/46 are based on the same general concept, those two provisions should be interpreted homogeneously (...)’ (point 28). –– This previous ban seems to be further mitigated by the explicit concession in the more recent Judgment that Member States are not called upon to give their national data protection authorities a ‘separate budget’ such as that provided for in Article 43(3) in the Regulation for the EDPS, according to Commission v. The direct ambition is to clarify which standard of ‘independence’ has to be provided for national data protection authorities in EU Member States in general, in Austria where currently legislation aims to implement the Judgment in Commission v. This is the unavoidable consequence of the independent interpretation of Article 28(1) of Directive 95/46.’ (emphasis added)
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