As of 1 January 2012 a new Agency (Data Protection and Freedom of Information Agency / NAIH) is responsible for the compliance with data protection and freedom of information laws in Hungary.

According to the information of the news portal origo.hu, the European Commission would very shortly launch infringement proceedings against Hungary due to the termination of the office of the Data Protection Commissioner who served as data protection supervisor until 31 December 2011. Origo.hu also reports that Ms Viviane Reding has informally already communicated to Hungarian Government officials the EU Commission’s opinion that the termination of the Commissioner’s position prior to the end of its term of office (until 2014 ) and appointment of an entirely new data protection supervisor most probably violates the independence of data protection authorities articulated by the European Data Protection Directive. We have already provided an overview of the complaint submitted by Hungarian NGO’s to the European Commission in our earlier blog post.

Notably, the Data Protection Commissioner András Jóri had permanent and heavy conflicts with government bodies and officials including chief whip of the government party Mr Lázár, as well as the deputy-prime minister, Mr Navracsics. In the context of the adoption of the new Basic Law of Hungary, other elected officials such as the president of the republic, the chief prosecutor, the ombudsman for civil rights, as well as the head of the state audit office etc. were permitted to continue their work until their original term of office will be over. However, in contrast, the position of the Data Protection Commissioner’s has been entirely abolished and replaced by the President of the new National Data Protection and Freedom of Information Authority. In that regard, there is a strong suspicion that termination of the Commissioner’s position was influenced by political motives and this served the revenge of the government party officials against Mr Jóri.

The question is whether the realignment of the Commissioner’s Office into an administrative agency justifies the early termination of the data protection supervisor’s position under the Data Protection Directive. Considering that the Hungarian Government did not provide any lawful justification for the termination of the Commissioner’s position and the arguments submitted to Vice-President Reding are hardly convincing, it is likely that the Court of Justice of the EU would establish the infringement of EU laws by Hungary if the Government does not voluntarily conform with requirements of the Directive on the independence of the DPA.

What may be the possible consequences if EU law has been infringed? The CJEU has a broad discretion to decide on such matters. It may adopt a declaratory judgement or require the Hungarian Government to reinstate the Commissioner’s position.

UPDATE: The European Commission warned Hungary on 11 January 2012 that it would initiate legal action unless the situation concerning the abolition of the Data Protection Commissioner’s position is remedied.

Statement of the European Commission on the situation in Hungary on 11 January 2012