Tuesday, March 22, 2005

German authorities backing down over financial privacy issue

In a posting a in November 2004 I had written about a new law -- the somewhat Orwellian sounding “Law for the Advancement of Tax Honesty” -- that would allow German tax authorities, social services and the employment office to find out about citizens' financial accounts -- and how that seemed to contradict Germany's long-standing tradition of being a champion of data protection (you find the original posting here).

As already mentioned in that earlier post, a small German cooperative bank (Volksbank Raesfeld, more information here) brought that topic before the German Constitutional Court. Now that the Court is about to pronounce on the case in the next couple of days, German authorities seem to become more flexible in their interpretation of the law -- perhaps in order to avoid defeat. As Sueddeutsche Zeitung, one of the country's leading newspapers, reports today (no online version available unfortunately), the Federal Finance Ministery has now issued guidelines for the procedures to be used with respect to the law.

Citizens are now to be informed after the query of the account has taken place, and they may even be invited to pass on the information themselves. It is now also planned that citizens will have the right to legal action against the query. Furthermore, any query will have to be authorised by a superior in the authority demanding access to the data, and reasons will have to be given.

None of this was initially planned or can be found in the wording of the law. The interesting question now is whether the Constitutional Court will deem this sufficient to attest that the law does comply with the German constitution.

Update: Today (23 March) the German Constitutional Court announced that it will not declare the law unconstitutional for now but await further developments. An application had been made to grant an interim measure before the law enters into force on 1 April. Interestingly, the Court explicitly referred to the Financial Ministry guidelines mentioned above. Further information can be found on the Constitutional Court website.


At 31/3/05 14:40, Anonymous Anonymous said...

Dear Andreas,
"none of this was initially planned or can be found in the wording of the law" - this is of course not the legal perspective. Among data protection authorities and lawyers it is clear that the named changes had to be made in order to guarantee the constitutionality of the law. The German constitutional right to "informational self-determination" forces the legislator to specify his concept of data proteczion in law passed by parliament. This has been done in the Bundesdatenschtuzgesetz (BDSG). An English version can be found online via http: www.datenschutz-berlin.de. There the principle of transparency as put down in this law forces the legislator to take the measures that now have been taken by the ministry finance. But this is of copurse not enough. There has to be written law, not a governmental decree/order.


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