Orzeczenie: Heinz Huber przeciwko Bundesrepublik Deutschland
Komentarz autorstwa Sandry Zok (w j. angielskim) do wyroku Europejskiego Trybunału Sprawiedliwości ws. Heinz Huber przeciwko Bundesrepublik Deutschland, w którym Trybunał orzekł, że nie może zostać uznane za konieczne w rozumieniu art. 7 lit. e) dyrektywy 95/46 przechowywanie i przetwarzanie w ramach rejestru takiego jak centralny rejestr cudzoziemców danych wymieniających dane osoby z nazwiska w celach statystycznych.
A. Factual background
The case I want to comment on deals with an Austrian citizen who moved to Germany in the year 1996 in order to work there as a self-employment insurance agent, without having the German nationality.
During his life in Germany he found out that a particular central register, called Ausländerzentralregister (hereinafter “AZR”), exists, which the Federal Office for Migration and Refugees operates and which stores personal data of foreign citizens. The claimant, Mr. Heinz Hubert, issued that he feels mostly discriminated by reason of the fact that these files in the AZR are only opened for foreign citizens and not for German citizens. Relying on Art. 12 EC (now Art. 18 TFEU) and Art. 43 I EC (now Art. 49 TFEU) and on Directive 95/46/EC he requested the deletion of his whole data in the AZR. After his request and even the challenge to this decision were rejected he brought an action before the Verwaltungsgericht (Administrative Court) which had the opinion that this kind of storage was incompatible with Community law. As the Federal Office for Migration and Refugees appealed against this judgement, the Administrative Court asked the Court of Justice if this storage is in fact against Community law and against the requirement of necessity laid down in the Art. 7 (e) of Directive 95/46/EC.
B. Comment
In this part of my essay I will comment on the four main points of the judgement. First I will start with the fact that this register is of centralised nature, then that this register contains very detailed information about a person, moving on with the facts that the German Government claims that it needs to use this register for statistics, and finally for combating of crime and threats to security.
First of all it is important to say that the Directive 2004/38/EC, and especially Art. 8 I of it, says that the Member States may require Union citizens who stay longer than three months in a country, in which they do not possess the citizenship, to report their presence within the territory and within a reasonable and non-discriminating period of time. According to Art. 8 III of this Directive the relevant authorities can ask for particular personal data. The European Court of Justice (hereinafter “ECJ”) deduced out of this Directive that Member States are in general allowed and that it is also necessary to collect and process the personal data in order to evaluate if the stay of one person in his territory is legal. According to this the Court stated that the use of a register like the AZR is in principle legitimate for the purpose of providing support to the authorities who are responsible for the application of this part of legislation which is related to the right of residence. The Court sees this register in general compatible with the prohibition of discrimination on the grounds of nationality laid down by Art. 12 I EC. 1) Beyond that the Court stated that the storage of personal data in a central register satisfies the requirement of necessity laid down by Art. 7 (e) of Directive 95/46/EC but only under the condition that this centralised nature enables the legislation relating to the right of residence to be more effectively applied.
For me a register like the AZR can be seen as a kind of monitoring of foreign citizens, because the personal data of one Union citizen cannot only be recalled in one of the 5000 2) local, municipal registers as it is for German citizens, but also in a central register which is available for the Federal Office for Migration and Refugees as well as for other public authorities, criminal authorities and agencies. Beyond those also non-public charitable organisations, public authorities from other States and International organisations have access to this database. This is a huge difference in treatment between German nationals and foreign citizens, which is in my opinion difficult to justify. As already the Advocate General Poiares Maduro pointed out in his analysis that this systematic monitoring of individuals is, because of the historical background, connected with undemocratic and totalitarian regimes, it is totally comprehensible why many people think that this register is objectionable. 3) Even though this idea of a central register does not only occur in Germany, but also in other European States, like Denmark, Luxembourg or the Netherlands,4) it is important to see that this type of sensibility, how the Advocate General calls it, is affirmed by the fact that only the personal data of foreign citizens is stored in the AZR. 5) Furthermore this data of foreign citizens is stored ten years after they moved away from Germany.6) This seems in my eyes questionable because why does the German Government need this register, when it says that it is only necessary for the purpose of providing support to the authorities to find out if the stay of one person is legitimate. In my view they should delete one’s database directly after this person left the German territory.
Another aspect, which underlines the controversy of this register is Art. 17 I EC (now Art. 20 I TFEU). This article accomplishes that every person who has the nationality of a Member State is to be citizen of the Union. And this Union citizenship, as it is mentioned in the judgement of the case Grzelczyk, is destined to be the fundamental status of nationals of the Member States which entitles foreign citizens to the same treatment as national subjects, except for a few exceptions.7) But with a register only for foreign citizens it is not possible that immigrants feel integrated and treated the same as German nationals. The knowledge of this differentiation on the other hand can arouse or strengthen certain prejudices of German citizens who think or, as the Advocate General said, start to think of “we” the Germans and “they” the foreigners. This can in my opinion cause or even widen a gap between German and foreign citizens which cannot be seen as the outcome which the EU law provisions on citizenship and the right of entry and residence wanted to achieve. Furthermore it can lead to the stigmatisation of Union citizens on the account of their national origin.8)
Another feature of this register is that it does not only contain 6,75 million data sets of people in the year 2010,9) but also that it contains more information about one’s person identity than the local registers contain for German citizens. While in municipal registers only the basic particulars of a person are stored, like for example the name, the marital status and the date of birth, the AZR stores about nine different features about a person, including the picture of a person, the day of entering Germany and also the possible history of criminal actions.10) This knowledge can make, in my opinion, Germany citizens suspicious, because they will ask themselves why this variety of information is stored only for foreigners. They will start to think that if the Government stores more information about foreign citizens than about them,
foreigners have to be more dangerous or have something to hide. This aspect casts the foreign citizens in a very bad light. So therefore I think that this detailed information will lead to a keen relationship between German and foreign citizens.
Also the aspect that the German Government wants to store this data to collect statistical information in order to fulfil its obligation of the Regulation EC No. 862/2007 of the European Parliament and of the Council of 11 July 2007 on Community statistics on migration and international protection cannot be seen as compatible with the Community law, because statistics do not have to contain the name of a person or even ones picture. Statistics are always, by definition, anonymous and impersonal. 11) This shows that it is not necessary to store such intimate information just to fulfil the obligation set in this Regulation.
As a last point I want to comment on the aspect that the German Government sees the necessity to observe the combating of crime and threats to security as a justification for the difference in treatment between Germans and citizens of other Member States. In my view it is surely necessary to have an overview of people who committed a crime but still, if the observation of people is so important for the German Government than it should be, as the Advocate General pointed out, for German citizens as well as for foreign citizens. 12) There is no need to differentiate between the nationalities. In my view this differentiation would again arise the myth that foreigners are more dangerous than German citizens, which would be a hard allegation for people of other Member States. And even the fact that the database which contains detailed information about one person can help the police to find a delinquent faster or easier cannot be seen as evidentiary, because the administrative convenience can never be seen as a reason “justifying discriminatory treatment on the basis of nationality or any other reason on the rights granted by Community law”. 13) Therefore I agree with the judgement of the Court which points out that Art. 12 I EC (now Art. 18 I TFEU) has to be interpreted in a way in which the Member State is not allowed to use this kind of system for the purpose of fighting crime only for foreign citizens. 14)
C. Result
Taking all these facts into account it is necessary to say that this register with all its features, like detailed information, central storage and possibility of retrieval of database of many different institutions, is in my view discriminatory. For me it is not only the fact that this database with its detailed information would not fulfil the requirement of necessity laid down in Art. 7 (e) of the Regulation 95/46/EC but it is more the influence which this system has on the German population. I am thinking of the fact that this register can arouse or strengthen prejudices or let people be suspicious. And on the other hand this register also leads to a certain indisposition of foreign citizens who do not feel accepted or integrated in this country. This in turn does not fulfil one Article of the Community law, namely Art. 18 I EC (now Art. 21 I TFEU) which says that the Union citizenship confers the right for every Union citizen to move and reside freely within the territory of the Member States and that the status of being a Union citizen gives every Union citizen the right to be treated as nationals except of a few exceptions. So for me this central register includes a variety of negative aspects which can open or widen the gap between nationals and foreign citizens.
Sandra Zok
Reference list
Judgements
1.) C-524/06 Heinz Huber v Bundesrepublik Deutschland. European Court of Justice. 16 Dec. 2008. Curia. Web. 16-25 May 2011. <http://curia.europa.eu/jurisp/cgi-bin/form.pl?lang=en&alljur=alljur&jurcdj=jurcdj&jurtpi=jurtpi&jurtfp=jurtfp&numaff=C-524/06&nomusuel=&docnodecision=docnodecision&allcommjo=allcommjo&affint=affint&affclose=affclose&alldocrec=alldocrec&docdecision=docdecision&docor=docor&docav=docav&docsom=docsom&docinf=docinf&alldocnorec=alldocnorec&docnoor=docnoor&docppoag=docppoag&radtypeord=on&newform=newform&docj=docj&docop=docop&docnoj=docnoj&typeord=ALL&domaine=&mots=&resmax=100&Submit=Rechercher>
2.) C-184/99 Rudy Grzelczyk v Centre Public D'aide Sociale D'Ottignies-Louvain-la-Neuve. European Court of Justice. EUR-Lex.europa.eu. Web. 16-25 May 2011. <http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:61999J0184:DE:PDF>
Opinions
1.) C-524/06 Heinz Huber v Bundesrepublik Deutschland. European Court of Justice. 3 Apr. 2008. EUR-Lex.europa.eu. Web. 16-25 May 2011. <http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62006C0524:EN:HTML>
Webpages
1.) Einwohnermeldeamt.de. Einwohnermeldeamt. Web. 16-25 May 2011. <http://www.einwohnermeldeamt.de/>
2.) Forschungszentrum Für Ausländer- Und Asylrecht Der Universität Konstanz. Web. 16-25 May 2011. <http://migration.uni-konstanz.de/content/center/docs/de/index.htm>
3.) Initiative Tageszeitung E.V. (ITZ). Web. 16-25 May 2011. <http://www.initiative-tageszeitung.de/lexika/leitfaden-artikel.html?LeitfadenID=63>
4.) "Ausländische Bevölkerung in Deutschland Nach Dem Ausländerzentralregister (AZR) Von 2004 Bis 2010." Statista. Web. 16-25 May 2011. <http://de.statista.com/statistik/daten/studie/151197/umfrage/auslaender-in-deutschland-nach-auslaenderzentralregister/>
The case I want to comment on deals with an Austrian citizen who moved to Germany in the year 1996 in order to work there as a self-employment insurance agent, without having the German nationality.
During his life in Germany he found out that a particular central register, called Ausländerzentralregister (hereinafter “AZR”), exists, which the Federal Office for Migration and Refugees operates and which stores personal data of foreign citizens. The claimant, Mr. Heinz Hubert, issued that he feels mostly discriminated by reason of the fact that these files in the AZR are only opened for foreign citizens and not for German citizens. Relying on Art. 12 EC (now Art. 18 TFEU) and Art. 43 I EC (now Art. 49 TFEU) and on Directive 95/46/EC he requested the deletion of his whole data in the AZR. After his request and even the challenge to this decision were rejected he brought an action before the Verwaltungsgericht (Administrative Court) which had the opinion that this kind of storage was incompatible with Community law. As the Federal Office for Migration and Refugees appealed against this judgement, the Administrative Court asked the Court of Justice if this storage is in fact against Community law and against the requirement of necessity laid down in the Art. 7 (e) of Directive 95/46/EC.
B. Comment
In this part of my essay I will comment on the four main points of the judgement. First I will start with the fact that this register is of centralised nature, then that this register contains very detailed information about a person, moving on with the facts that the German Government claims that it needs to use this register for statistics, and finally for combating of crime and threats to security.
First of all it is important to say that the Directive 2004/38/EC, and especially Art. 8 I of it, says that the Member States may require Union citizens who stay longer than three months in a country, in which they do not possess the citizenship, to report their presence within the territory and within a reasonable and non-discriminating period of time. According to Art. 8 III of this Directive the relevant authorities can ask for particular personal data. The European Court of Justice (hereinafter “ECJ”) deduced out of this Directive that Member States are in general allowed and that it is also necessary to collect and process the personal data in order to evaluate if the stay of one person in his territory is legal. According to this the Court stated that the use of a register like the AZR is in principle legitimate for the purpose of providing support to the authorities who are responsible for the application of this part of legislation which is related to the right of residence. The Court sees this register in general compatible with the prohibition of discrimination on the grounds of nationality laid down by Art. 12 I EC. 1) Beyond that the Court stated that the storage of personal data in a central register satisfies the requirement of necessity laid down by Art. 7 (e) of Directive 95/46/EC but only under the condition that this centralised nature enables the legislation relating to the right of residence to be more effectively applied.
For me a register like the AZR can be seen as a kind of monitoring of foreign citizens, because the personal data of one Union citizen cannot only be recalled in one of the 5000 2) local, municipal registers as it is for German citizens, but also in a central register which is available for the Federal Office for Migration and Refugees as well as for other public authorities, criminal authorities and agencies. Beyond those also non-public charitable organisations, public authorities from other States and International organisations have access to this database. This is a huge difference in treatment between German nationals and foreign citizens, which is in my opinion difficult to justify. As already the Advocate General Poiares Maduro pointed out in his analysis that this systematic monitoring of individuals is, because of the historical background, connected with undemocratic and totalitarian regimes, it is totally comprehensible why many people think that this register is objectionable. 3) Even though this idea of a central register does not only occur in Germany, but also in other European States, like Denmark, Luxembourg or the Netherlands,4) it is important to see that this type of sensibility, how the Advocate General calls it, is affirmed by the fact that only the personal data of foreign citizens is stored in the AZR. 5) Furthermore this data of foreign citizens is stored ten years after they moved away from Germany.6) This seems in my eyes questionable because why does the German Government need this register, when it says that it is only necessary for the purpose of providing support to the authorities to find out if the stay of one person is legitimate. In my view they should delete one’s database directly after this person left the German territory.
Another aspect, which underlines the controversy of this register is Art. 17 I EC (now Art. 20 I TFEU). This article accomplishes that every person who has the nationality of a Member State is to be citizen of the Union. And this Union citizenship, as it is mentioned in the judgement of the case Grzelczyk, is destined to be the fundamental status of nationals of the Member States which entitles foreign citizens to the same treatment as national subjects, except for a few exceptions.7) But with a register only for foreign citizens it is not possible that immigrants feel integrated and treated the same as German nationals. The knowledge of this differentiation on the other hand can arouse or strengthen certain prejudices of German citizens who think or, as the Advocate General said, start to think of “we” the Germans and “they” the foreigners. This can in my opinion cause or even widen a gap between German and foreign citizens which cannot be seen as the outcome which the EU law provisions on citizenship and the right of entry and residence wanted to achieve. Furthermore it can lead to the stigmatisation of Union citizens on the account of their national origin.8)
Another feature of this register is that it does not only contain 6,75 million data sets of people in the year 2010,9) but also that it contains more information about one’s person identity than the local registers contain for German citizens. While in municipal registers only the basic particulars of a person are stored, like for example the name, the marital status and the date of birth, the AZR stores about nine different features about a person, including the picture of a person, the day of entering Germany and also the possible history of criminal actions.10) This knowledge can make, in my opinion, Germany citizens suspicious, because they will ask themselves why this variety of information is stored only for foreigners. They will start to think that if the Government stores more information about foreign citizens than about them,
foreigners have to be more dangerous or have something to hide. This aspect casts the foreign citizens in a very bad light. So therefore I think that this detailed information will lead to a keen relationship between German and foreign citizens.
Also the aspect that the German Government wants to store this data to collect statistical information in order to fulfil its obligation of the Regulation EC No. 862/2007 of the European Parliament and of the Council of 11 July 2007 on Community statistics on migration and international protection cannot be seen as compatible with the Community law, because statistics do not have to contain the name of a person or even ones picture. Statistics are always, by definition, anonymous and impersonal. 11) This shows that it is not necessary to store such intimate information just to fulfil the obligation set in this Regulation.
As a last point I want to comment on the aspect that the German Government sees the necessity to observe the combating of crime and threats to security as a justification for the difference in treatment between Germans and citizens of other Member States. In my view it is surely necessary to have an overview of people who committed a crime but still, if the observation of people is so important for the German Government than it should be, as the Advocate General pointed out, for German citizens as well as for foreign citizens. 12) There is no need to differentiate between the nationalities. In my view this differentiation would again arise the myth that foreigners are more dangerous than German citizens, which would be a hard allegation for people of other Member States. And even the fact that the database which contains detailed information about one person can help the police to find a delinquent faster or easier cannot be seen as evidentiary, because the administrative convenience can never be seen as a reason “justifying discriminatory treatment on the basis of nationality or any other reason on the rights granted by Community law”. 13) Therefore I agree with the judgement of the Court which points out that Art. 12 I EC (now Art. 18 I TFEU) has to be interpreted in a way in which the Member State is not allowed to use this kind of system for the purpose of fighting crime only for foreign citizens. 14)
C. Result
Taking all these facts into account it is necessary to say that this register with all its features, like detailed information, central storage and possibility of retrieval of database of many different institutions, is in my view discriminatory. For me it is not only the fact that this database with its detailed information would not fulfil the requirement of necessity laid down in Art. 7 (e) of the Regulation 95/46/EC but it is more the influence which this system has on the German population. I am thinking of the fact that this register can arouse or strengthen prejudices or let people be suspicious. And on the other hand this register also leads to a certain indisposition of foreign citizens who do not feel accepted or integrated in this country. This in turn does not fulfil one Article of the Community law, namely Art. 18 I EC (now Art. 21 I TFEU) which says that the Union citizenship confers the right for every Union citizen to move and reside freely within the territory of the Member States and that the status of being a Union citizen gives every Union citizen the right to be treated as nationals except of a few exceptions. So for me this central register includes a variety of negative aspects which can open or widen the gap between nationals and foreign citizens.
Sandra Zok
Reference list
Judgements
1.) C-524/06 Heinz Huber v Bundesrepublik Deutschland. European Court of Justice. 16 Dec. 2008. Curia. Web. 16-25 May 2011. <http://curia.europa.eu/jurisp/cgi-bin/form.pl?lang=en&alljur=alljur&jurcdj=jurcdj&jurtpi=jurtpi&jurtfp=jurtfp&numaff=C-524/06&nomusuel=&docnodecision=docnodecision&allcommjo=allcommjo&affint=affint&affclose=affclose&alldocrec=alldocrec&docdecision=docdecision&docor=docor&docav=docav&docsom=docsom&docinf=docinf&alldocnorec=alldocnorec&docnoor=docnoor&docppoag=docppoag&radtypeord=on&newform=newform&docj=docj&docop=docop&docnoj=docnoj&typeord=ALL&domaine=&mots=&resmax=100&Submit=Rechercher>
2.) C-184/99 Rudy Grzelczyk v Centre Public D'aide Sociale D'Ottignies-Louvain-la-Neuve. European Court of Justice. EUR-Lex.europa.eu. Web. 16-25 May 2011. <http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:61999J0184:DE:PDF>
Opinions
1.) C-524/06 Heinz Huber v Bundesrepublik Deutschland. European Court of Justice. 3 Apr. 2008. EUR-Lex.europa.eu. Web. 16-25 May 2011. <http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62006C0524:EN:HTML>
Webpages
1.) Einwohnermeldeamt.de. Einwohnermeldeamt. Web. 16-25 May 2011. <http://www.einwohnermeldeamt.de/>
2.) Forschungszentrum Für Ausländer- Und Asylrecht Der Universität Konstanz. Web. 16-25 May 2011. <http://migration.uni-konstanz.de/content/center/docs/de/index.htm>
3.) Initiative Tageszeitung E.V. (ITZ). Web. 16-25 May 2011. <http://www.initiative-tageszeitung.de/lexika/leitfaden-artikel.html?LeitfadenID=63>
4.) "Ausländische Bevölkerung in Deutschland Nach Dem Ausländerzentralregister (AZR) Von 2004 Bis 2010." Statista. Web. 16-25 May 2011. <http://de.statista.com/statistik/daten/studie/151197/umfrage/auslaender-in-deutschland-nach-auslaenderzentralregister/>
Pliki do pobrania:
Dodaj komentarz
Dodano: 2011-06-24 08:45:06
©2008 Wydział Prawa i Administracji UW. Wszelkie prawa zastrzeżone :: system CMS: MG
