A New Proportionality Test for Fundamental Rights? : The Joined Cases C-92/09 and C-93/09 Volker und Markus Schecke GbR (C-92/09) and Hartmut Eifert (C-93/09) v. Land Hessen

Abstract

In the joined cases C-92/09 and C-93/09 Volker und Markus Schecke GbR (C-92/09) and Hartmut Eifert (C-93/09) v. Land Hessen Judgment of 9 November 2010, not yet published, the Court of Justice of the European Union (Court of Justice) was called upon to balance the right to respect of private life in general, and to the protection of personal data in particular, protected by Articles 7 and 8 of the Charter of Fundamental Rights of the European Union (the Charter), against the principle of transparency stated in Articles 1 and 10 of the Treaty on European Union (TEU) and in Article 15 of the Treaty on the Functioning of the European Union (TFEU). The Court of Justice approached this problem within the context of a reference for a preliminary ruling under Article 267 TFEU. This reference, however, took the form of an indirect challenge to certain EU law provisions that, in the view of the applicants, violated the right to respect of private life and of the protection of personal data. In this analysis the method of the Court of Justice when balancing diverging or even opposing interests protected by EU law will be scrutinised. The authors are critical of the Court’s reasoning, which they consider put too little weight on the fundamental interest of transparency in the case at hand. The analysis is structured as follows. First, in section 1, the arguments of the Applicants and the respondent State respectively will be summarised, followed by the main reasoning of the Court. In section 2, the question of how to balance fundamental rights and general interests will be analysed, taking as the point of departure the question of proportionality as described by the Court. The conclusions are presented in the final section 3.