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EDPS Pleading EC-Hungary En

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EDPS EC v Hungary
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   1 EDPS pleading Commission v Hungary   (C-288/12) Court of Justice of the EU - 15 October 2013 Mr. President, honourable members of the Court, Mr Advocate General, Introduction Your Court is asked to provide further clarity on what is required for a data protection supervisory authority to act with complete independence . Your judgment will have consequences going beyond the Hungarian situation. It may significantly contribute to effective and reliable data protection supervision throughout the European Union. In Commission v Germany  (Case C-518/07, para 30) your Court already ruled that the supervisory authorities must enjoy an independence allowing them to perform their duties free from any external influence, whether direct or indirect . The key issue before the Court today  is whether the termination of the mandate of the Hungarian data protection commissioner should be considered such an ‘ external influence'.     2 I will argue today that both 'direct' and 'indirect' 'external influence' has been exerted  on the Hungarian supervisory authority, within the meaning of your ruling in Commission v Germany . First, what, if anything, can constitute more direct external influence  over a supervisory authority than arbitrarily removing from his position the head of this authority almost three years  before his mandate would otherwise lapse? I will argue that the mandate must be protected from being terminated before its term without adequate justification and appropriate procedural safeguards. As I will explain further,  a legislative   change cannot, in itself, justify early termination of the mandate of the head of the authority.   3 Second, there is a clear risk that the events that took place may also have an indirect external influence  on any future head of the new supervisory authority. The precedent that such an arbitrary, early termination of a mandate was allowed to happen once, may well create an atmosphere of uncertainty, and thus may have a chilling effect on the activities of any subsequent heads of the supervisory authority . After all, in future, what, if anything, guarantees that another head of a supervisory authority, perhaps one that expresses strong criticism of government, will not also be arbitrarily removed from office, using another reorganisation as a pretext? For these reasons, the EDPS supports the form of order sought by the European Commission , namely that Hungary has failed to fulfil its obligation  under Article 28 of Directive 95/46/EC to ensure that the national supervisory authority acts with complete independence.   4 Importance of organisational guarantees for independence In this pleading, I will focus on the Hungarian situation. However, before turning to this in more detail, I would first like to make two general remarks: 1. First, the requirement of complete independence goes beyond 'functional independence' . After your ruling in Commission v Austria  (Case C-614/10, para 42), this is now settled case law. 2. Second, to ensure 'complete independence', it is crucial to adopt and adhere to certain key organisational guarantees.  
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