ECJ An Austrian businessman who had moved to Germany complained that storing data relating to him in a central register of foreign nationals discriminated against him as there was no such database for German nationals. Advocate General Poiares Maduro pointed out that: ‘The concept of necessity has a long history in Community law and is well established as part of the proportionality test. It means that the authority adopting a measure which interferes with a right protected by Community law in order to achieve a legitimate aim must demonstrate that the measure is the least restrictive for the achievement of this aim.’ If the processing might be liable to infringe the fundamental right to privacy, article 8 became relevant, and the Court had held in the Austrian Radio case that if a national measure was incompatible with article 8, then it also failed to pass the threshold of article 7(e) of the Directive (para AG27). The European Court of Justice did not refer to this paragraph in its judgment and contented itself with saying that ‘the concept of necessity laid down by article 7(e) of Directive 95/46 . . cannot have a meaning which varies between member states. It therefore follows that what is at issue is a concept which has its own independent meaning in Community law and which must be interpreted in a manner which fully reflects the objective of that directive, as laid down in article 1(1) thereof.’
The central register would only comply with article 7(e) if it contained only the data necessary for the authorities to apply the law relating to rights of residence and its centralised nature enabled that legislation to be more effectively applied.
Poiares Maduro AG
C-524/06,  EUECJ C-524/06,  1 CMLR 1360
European Convention on Human Rights 8
Cited – South Lanarkshire Council v The Scottish Information Commissioner SC 29-Jul-2013
Commissioner’s Approach not in Breach
In May 2010, a Mr Irvine made requests under the 2002 Act for information from South Lanarkshire Council. He wanted to know how many of their employees in a particular post were placed at 10 particular points on the Council’s pay scales. His . .
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Updated: 07 February 2021; Ref: scu.266448