COMMISSION V. GERMANY, 9.Mar.2010 (“GERMANY”)

Independence of Supervisory Authorities: Independence means a status which ensures that the body concerned can act completely freely, without taking any instructions or being put under any pressure. The requirement of independence does not only concern the relationship between the supervisory authorities and the bodies subject to that supervision. The adjective “complete” implies a decision-making power independent of any direct or indirect external influence on the supervisory authority. DPAs must act impartially and must remain free from any external influence, including that of the State or Lander. (¶¶18-19, 44-47)

With regard, in the first place, to the wording of the second subparagraph of Article 28(1) of Directive 95/46, because the words ‘with complete independence’ are not defined by that directive, it is necessary to take their usual meaning into account. In relation to a public body, the term ‘independence’ normally means a status which ensures that the body concerned can act completely freely, without taking any instructions or being put under any pressure.

Contrary to the position taken by the Federal Republic of Germany, there is nothing to indicate that the requirement of independence concerns exclusively the relationship between the supervisory authorities and the bodies subject to that supervision. On the contrary, the concept of ‘independence’ is complemented by the adjective ‘complete’, which implies a decision-making power independent of any direct or indirect external influence on the supervisory authority.

Thus, first, the management of the supervisory authorities may be appointed by the parliament or the government. Secondly, the legislator may define the powers of those authorities.

Furthermore, the legislator may impose an obligation on the supervisory authorities to report their activities to the parliament. In that regard, a comparison may be made with Article 28(5) of Directive 95/46 which provides that each supervisory authority is to draw up a report on its activities at regular intervals which will then be made public.

In view of the foregoing, conferring a status independent of the general administration on the supervisory authorities responsible for the protection of individuals with regard to the processing of personal data outside the public sector does not in itself deprive those authorities of their democratic legitimacy.

Secondly, the principle of conferred powers enshrined in the first paragraph of Article 5 EC, also pleaded by the Federal Republic of Germany, obliges the Community to act within the limits of the powers conferred on it and of the objectives assigned to it by the EC Treaty.