The Court holds that, by prematurely bringing to an end the term served by the supervisory authority for the protection of personal data, Hungary has failed to fulfil its obligations under Directive 95/46.
– EU Court of Justice, 8 April 2014
On Tuesday, the Court of Justice of the European Union ruled that changes to Hungary’s data protection regime resulted in the unlawful replacement of the country’s data protection ombudsman, Andras Jori, in 2012.
Jori was appointed in September 2008 for a term of six years. On 1 January 2012 the Hungarian Parliament decided to replace the data protection ombudsman (chosen by parliament) with a national authority for data protection and freedom of information (whose head is appointed by the prime minister). Jori was forced to vacate office before his full term had expired. Attila Peterfalvi was subsequently appointed to head the new authority for a term of nine years.
The European Commission brought action against Hungary for failure to fulfill its obligations which guarantee the independence of the authorities responsible for the protection of personal data (EU Council Directive 95/46).
In its judgment of 8 April 2014, the EU Court of Justice ruled that Hungary’s supervisory authorities established in accordance with EC directive 96/46 must be allowed to perform their duties free from external influence. This requirement implies that those authorities not be bound by instructions of any kind in the performance of their duties and that their decision-making process be free from political influence.
A press release outlining the the Court of Justice of the European Union ruling on the case states the following:
If it were permissible for a Member State to compel a supervisory authority to vacate office before serving its full term, in contravention of the rules and safeguards established in that regard by the legislation applicable, that authority might be prompted to enter into a form of prior compliance with political powers. Consequently, the independence of supervisory authorities necessarily covers the obligation to allow them to serve their full term of office and to cause them to vacate office before expiry of the full term only in accordance with the applicable legislation.
Accordingly, the Court holds that, by prematurely bringing to an end the term served by the supervisory authority for the protection of personal data, Hungary has failed to fulfil its obligations under Directive 95/46.
In July 2011, the Hungarian parliament passed legislation which dramatically altered the structure and institutional independence of Hungary’s data protection and freedom of information ombudsman. The legislation modifying the role of this office was criticized by many civil rights organizations, including the Hungarian Civil Liberties Union, the Eotvos Karoly Policy Institute, and the Hungarian Helsinki Committee, who collectively authored a letter to European Commission President Jose Manuel Barroso on 3 October 2011 summarizing their concerns (click here to read the letter in English or Hungarian).
The new law came into force on 1 January 2012 and a lawsuit was filed against the Hungarian government by the European Commission in the European Court of Justice (Case C-288/12). Data Protection and Freedom of Information in Hungary have been the source of domestic and international concern.
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