5.3.2011

EN

Official Journal of the European Union

C 72/13

(Case C-614/10)

2011/C 72/22

Language of the case: German

Parties

Applicant: European Commission (represented by: B. Martenczuk and B.-R. Killmann, acting as Agents)

Defendant: Republic of Austria

Form of order sought

—Declare that the Republic of Austria has infringed its obligations under the second subparagraph of Article 28(1) of Directive 95/46/EC because the legal situation in Austria of a Data Protection Commission created as data protection inspection body does not fulfil the criterion of complete independence.

—order the Republic of Austria to pay the costs.

Pleas in law and main arguments

The Commission is of the opinion that the independence of the Data Protection Commission as inspection body for the control of data protection regulations in Austria is not guaranteed.

The Data Protection Commission is organisationally closely connected with the Federal Chancellor’s Office (Bundeskanzleramt). The latter supervises the employees of the Data Protection Commission and is also responsible for that commission’s material provisions. Furthermore, an administrative officer of the Federal Chancellor’s Office is responsible for the management of the Data Protection Commission, who is also for the duration of his duties bound by the directions of his supervisor and subject to that supervision. That situation leads to clear conflicts of loyalty and interests.

Moreover, the Federal Chancellor (Bundeskanzler), who like other public posts is subject to the control of the Data Protection Commission, has a comprehensive right to supervise and instruct that commission. As a result, it is possible for the Federal Chancellor at any time and without any concrete ground to inform himself about all aspects of the management of the Data Protection Commission. There exists thereby the risk that that right could be used in order to exercise political influence.