RECHNUNGSHOF V. OSTER REICHISCHER RUNDFUNK, 20.5.2003 (“RUNDFUNK”)

Lawful basis for proceeding (Necessity requirement): The CJEU held that for an employer to publish the names and incomes of employees to a third party is an interference with the right to respect for private life, protected by article 8 of the European Convention on Human Rights (para 74), but it might be justified if it was both necessary for and appropriate to the aim of keeping salaries within reasonable limits, (that being for the national courts to determine)

It must next be ascertained whether the interference in question is necessary in a democratic society to achieve the legitimate aim pursued.

According to the European Court of Human Rights, the adjective ‘necessary’ in Article 8(2) of the Convention implies that a ‘pressing social need’ is involved and that the measure employed is ‘proportionate to the legitimate aim pursued’ (see, inter alia, the Gillow v. the United Kingdom judgment of 24 November 1986, Series A no. 109, § 55). The national authorities also enjoy a margin of appreciation, ‘the scope of which will depend not only on the nature of the legitimate aim pursued but also on the particular nature of the interference involved’ (see the Leander v. Sweden judgment of 26 March 1987, Series A no. 116, § 59).

The interest of the Republic of Austria in ensuring the best use of public funds, and in particular keeping salaries within reasonable limits, must be balanced against the seriousness of the interference with the right of the persons concerned to respect for their private life.

On the one hand, in order to monitor the proper use of public funds, the Rechnungshof and the various parliamentary bodies undoubtedly need to know the amount of expenditure on human resources in the various public bodies. In addition, in a democratic society, taxpayers and public opinion generally have the right to be kept informed of the use of public revenues, in particular as regards expenditure on staff. Such information, put together in the Report, may make a contribution to the public debate on a question of general interest, and thus serves the public interest.

The question nevertheless arises whether stating the names of the persons concerned in relation to the income received is proportionate to the legitimate aim pursued and whether the reasons relied on before the Court to justify such disclosure appear relevant and sufficient.

It is plain that, according to the interpretation adopted by the national courts, Paragraph 8 of the BezBegrBVG requires disclosure of the names of the persons concerned, in relation to income above a certain level, with respect not only to persons filling posts remunerated by salaries on a published scale, but to all persons remunerated by bodies subject to control by the Rechnungshof. Moreover, such information is not only communicated to the Rechnungshof and via the latter to the various parliamentary bodies, but is also made widely available to the public.

It is for the national courts to ascertain whether such publicity is both necessary and proportionate to the aim of keeping salaries within reasonable limits, and in particular to examine whether such an objective could not have been attained equally effectively by transmitting the information as to names to the monitoring bodies alone. Similarly, the question arises whether it would not have been sufficient to inform the general public only of the remuneration and other financial benefits to which persons employed by the public bodies concerned have a contractual or statutory right, but not of the sums which each of them actually received during the year in question, which may depend to a varying extent on their personal and family situation.

With respect, on the other hand, to the seriousness of the interference with the right of the persons concerned to respect for their private life, it is not impossible that they may suffer harm as a result of the negative effects of the publicity attached to their income from employment, in particular on their prospects of being given employment by other undertakings, whether in Austria or elsewhere, which are not subject to control by the Rechnungshof.

It must be concluded that the interference resulting from the application of national legislation such as that at issue in the main proceedings may be justified under Article 8(2) of the Convention only in so far as the wide disclosure not merely of the amounts of the annual income above a certain threshold of persons employed by the bodies subject to control by the Rechnungshof but also of the names of the recipients of that income is both necessary for and appropriate to the aim of keeping salaries within reasonable limits, that being a matter for the national courts to examine.

In the light of all the above considerations, the answer to the first question must be that Articles 6(1)(c) and 7(c) and (e) of Directive 95/46 do not preclude national legislation such as that at issue in the main proceedings, provided that it is shown that the wide disclosure not merely of the amounts of the annual income above a certain threshold of persons employed by the bodies subject to control by the Rechnungshof but also of the names of the recipients of that income is necessary for and appropriate to the objective of proper management of public funds pursued by the legislature, that being for the national courts to ascertain.