Dr Attila Pterfalvi The Hungarian case Ide kerlhet

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Dr. Attila Péterfalvi: The Hungarian „case” Ide kerülhet az előadás címe (Independence of the

Dr. Attila Péterfalvi: The Hungarian „case” Ide kerülhet az előadás címe (Independence of the DPA) Belgrade, 12 -04 -2013

Legal framework, requirements Hungary’s Basic Law, Article VI. (3): ‟The exercise of the right

Legal framework, requirements Hungary’s Basic Law, Article VI. (3): ‟The exercise of the right to the protection of personal data and the access to data of public interest shall be supervised by an independent authority. ” Privacy Act 38. § (1): ‟The Authority shall be an autonomous state administration organ. ” [

Elements of legal autonomy a) Organisational b) Operational c) Personnel d) Budgetary and fiscal

Elements of legal autonomy a) Organisational b) Operational c) Personnel d) Budgetary and fiscal

Organisational and operational independence ‟The Authority shall be independent, subordinated only to Acts; it

Organisational and operational independence ‟The Authority shall be independent, subordinated only to Acts; it may not be given instructions as to the performance of its tasks, and shall perform its tasks separately from other organs, free of any outside influence. Tasks for the Authority may only be established by an Act. ” [Privacy Act 38. § (5)]

Budgetary - fiscal independence Stable state funding is guaranteed through a separate budgetary appropriation.

Budgetary - fiscal independence Stable state funding is guaranteed through a separate budgetary appropriation. The Authority shall be a central budgetary organ with the powers of a budgetary chapter. The Authority’s budget shall constitute an independent title within the budgetary chapter of Parliament. → 390 200 000 HUF = 1 300 666 EUR (2012) → 477 000 HUF = 1 604 548 EUR (2013)

Personal independence I. President • Oath • Professional criteria • Conflicts of interest •

Personal independence I. President • Oath • Professional criteria • Conflicts of interest • Political • Economic • Unremovability • Mandate extends beyond government cycle • Remuneration (ministerial salary)

Personal independence II. Vice President • Appointed by the President of the Authority (for

Personal independence II. Vice President • Appointed by the President of the Authority (for an unlimited time) • Criteria and status similar to that of the President • Significant difference: removability (serves at the pleasure of the President) Personnel • Civil servants, employees • Rights of employer are held by the President • Remit to examine (qualifications, education)

Relationship to other state organs I. • National Assembly: - sets budget, annual report,

Relationship to other state organs I. • National Assembly: - sets budget, annual report, committee hearings • President of the Republic: - appointment of the NAIH president, oath • Government (Prime Minister): - personal proposal of the nominated NAIH president • Courts: - may review decisions of NAIH • Fundamental Rights Commissioner: - limited right of refusal, actio popularis before the constitional court

Relationship to other state organs II. All public bodies: - investigations - right to

Relationship to other state organs II. All public bodies: - investigations - right to comment on special and unique published • All data processors: - official investigations and penalties • All legislative bodies: - right to comment on legislation, suggestions • Courts: - initiate proceedings - interference in the trial • Public prosecution: - initiate criminal proceedings lists

The Luxembourg Case: action brought on 8 June 2012 - European Commission v. Hungary

The Luxembourg Case: action brought on 8 June 2012 - European Commission v. Hungary (Case C-288/12) „Hungary has failed to fulfil its obligations under Directive 95/46/EC by removing the data protection supervisor from office before. In normal circumstances, he should have remained in post until September 2014. With effect from 1 January 2012 the Hungarian legislation on this subject was amended. As a result of those amendments, the post of data protection supervisor was withdrawn and the data protection supervisor was removed from office. The authority responsible for supervising data protection in Hungary is thereafter the newly created Authority. According to the new legislation, the head of that authority is appointed by the President of the Republic on the proposal of the Prime Minister for a term of nine years. The previous data protection supervisor was not appointed to that post. ”

Arguments of the parties Commission: does not dispute the right of Hungary to reorganise

Arguments of the parties Commission: does not dispute the right of Hungary to reorganise the supervisory authority, moving from the previous model of 'data protection supervisor' to a model consistent with Hungarian law in the form of an 'authority'. BUT Hungary could have provided in its national legislation either that the new model should be applicable once the term of office of the data protection supervisor occupying the post had expired, or that the previous data protection supervisor should be appointed the first head of the new authority for the remainder of his term of office. Hungary: The whole human rights protection system has been reformed including data protection (comprehensive model change) AND Negative statements of the former commissioner published in the press to refuse to fulfil the new functions.

Thank you for your attention NAIH 1125 Budapest, Szilágyi Erzsébet fasor 22/C. 1530 Budapest,

Thank you for your attention NAIH 1125 Budapest, Szilágyi Erzsébet fasor 22/C. 1530 Budapest, Pf. 5. Tel. : +36 391 -1403 Tel. : +36 391 -1410 [email protected] hu www. naih. hu