Eötvös Károly Policy Institute, Hungarian Civil Liberties Union and Hungarian Helsinki Committee informed the President of the European Commission on the failure of the Hungarian lawmaker to fulfill its obligation to guarantee the complete independence of the Data Protection Commissioner. Hungary therefore breached its duty arising from EU law.
The removal of the commissioner before the end of his term breaches obligations under Data Protection Directive. Under Article 28 (1) of the Directive, the public authorities -responsible for monitoring the application of the Directive - “shall act with complete independence in exercising the functions entrusted to them.” According to the new Act No CXII of 2011 on informational self determination and freedom of information, the Data Protection Commissioner will be replaced by the National Data Protection and Freedom of Information Authority. The head of the government agency will be appointed by the President of the Republic, and takes over the place of the current Commissioner.
The European Court of Justice ruled
in the case European Commission v. Federal Republic of Germany that when carrying out their duties – i.e. ensure the fair balance between the fundamental right to the private life and the interest requiring free movement of data – the supervisory authorities must act objectively and impartially. For that purpose, they must remain free from any external influence, including the direct and indirect influence of the state, and not only the influence of the supervised bodies. The Court furthermore held that the mere risk that the scrutinizing authorities could exercise political influence over the decision of the supervisory authorities, was enough to hinder the latter authorities independent performance of their tasks.
According to the NGOs reading, the removal of the current Data Protection Commissioner before the end of fixed six years term in 2014 by lawmaking is an unacceptable political influence. Eötvös Károly Policy Institute, Hungarian Civil Liberties Union and Helsinki Committee petitioned the European Commission to launch an enquiry.