Ferdinand Wollenschläger

Budgetöffentlichkeit im Zeitalter der Informationsgesellschaft Die Offenlegung von Zuwendungsempfängern im Spannungsfeld von Haushaltstransparenz und Datenschutz

Volume 135 () / Issue 3, pp. 363-403 (41)

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When, in 1781, King Louis XVI's minister of finance, Jacques Necker, broke with the absolutistic tradition of secrecy in financial affairs of the king and made the national budget accessible to the public for the very first time, he considered himself having launched a new era in the history of public finances (»une nouvelle ère dans les finances«). Likewise, a recent change in the European Union's budget law may be regarded as a new era of transparency of the budget: For, as a consequence of the European Transparency Initiative launched by the European Commission in 2005 and of subsequent amendments of the Financial Regulation as well as of specific provisions on EU funds, EU law requires disclosing the beneficiaries of funds deriving from the EU budget (cf. Art. 30 para. 3 of the Financial Regulation). This development is to be seen in the wider context of improving transparency in the public sector, notably by making information held by public authorities accessible to the public, in order to achieve accountability, to foster legitimation and acceptance of state action and to promote an informed public, democratic debate and thus democracy. Moreover, citizens shall be enabled to exercise control over how the taxpayers' money is spent. Despite these important goals, however, realising transparency in such a way interferes with fundamental rights of the beneficiaries, notably the right to protection of personal data, and thus raises the issue whether a fair balance between these two poles has been struck. Against this background the article first explores the foundation of the constitutional principle of transparency of the budget in the German as well as in the European context (B.I.) and analyses the recent extension of this principle in EU budget law, in particular as far as agricultural subsides (Common Agricultural Policy [CAP]) are concerned. Insofar, EU law provides for the publication of the name of the beneficiary, her or his municipality of residence and the amounts awarded in a database accessible via the Internet and including a search tool (B.II.). Next, the article shows that despite the publication by national authorities, EU and not national fundamental rights apply (C.I.). Then, the article argues that notwithstanding the publication interfering with the right of the beneficiaries of CAP funds to protection of personal data (Art. 8 of the Charter of Fundamental Rights of the European Union [CFR]), the disclosure may be justified in view of the legitimate aims pursued in a proportionate manner; thereby the article also outlines the scope of this new guarantee (C.II.). Even if the extent to which information about beneficiaries has to be published varies depending on the subsidy in question, the right to equality (Art. 20 CFR) is not infringed (C.III.). Finally, as the publication does not affect the exercise of professional activities, neither the freedom to choose an occupation and the right to engage in work (Art. 15 CFR) nor the freedom to conduct a business (Art. 16 CFR) are interfered with (D.).

Ferdinand Wollenschläger ist Inhaber des Lehrstuhls für Öffentliches Recht, Europarecht und Öffentliches Wirtschaftsrecht an der Juristischen Fakultät der Universität Augsburg.