ECJ dismisses EDPS application to intervene as inadmissible

With a reasoning that goes very far from the recent ECJ case-law, the Court’s President rejected with his Order (C-73/07) an application of the European Data Protection Supervisor to intervene in a Finnish case with data protection aspects, as inadmissible.

As a decisive difference for this alteration has been underlined that this case was a preliminary ruling, whilst the two previous cases (C-317/04, C-318/04) were on direct petitions for Community acts annulment. The Court’s arguments are structured on an extremely narrow interpretation of the provisions on intervention, without applying the functional flexibility required, given the EDPS nature as an independent authority for Europe-wide data protection.

Independent authorities competent for the protection of personal data have the mission to assist all public institutions, when dealing with data protection cases. What is more, the Data Protection Authorities gather experiences acquired by the practical handling of data protection cases and these experiences go beyond the good application of data protection law. The DPAs are forums and laboratories of best practices, providing the most appropriate guidelines and effective solutions at economical, technical, social and moral level, as regards the complex issues occurring in the field of data protection. Unlike the courts, DPAs’ mission is mainly of a proactive nature and this would be the aim of an EDPS intervention in a preliminary ruling procedure.

The independent authorities’ power to intervene before the courts is a generally recognized principle of the contemporary procedural law. Relevant to this is the Human Rights Commissioner’s right to intervene before the European Court of Human Rights, according to the 14^th Protocol of the European Convention.

Thus, the rejection of EDPS, who offered himself in order to explain his views and introduce his experiences with regard this pending case, which is expected to have pan-european impact on the interpretation of data protection law from courts and authorities, is obviously negative.

Further to the abovementioned reasons, this Order is negative, as it narrows unjustifiably the power of EDPS to intervene before ECJ, as stipulated in Regulation 45/2001. According to the Regulation, there is no provision excluding the EDPS from the preliminary ruling procedures, since the right to intervene in cases with data protection aspects is of a general scope and does not subject to limitations newly “discovered” by the Court.

All in all, the Court failed to maintain a high level of data protection independent supervision within the administrative structure of the Community, as provided for in article 286 TEC and as has been safeguarded until now with the two previous Orders in the PNR case.