EHRM, 09-03-2023, nr. 36345/16

Since 1996 the Hungarian tax administration system has allowed limits to be placed on taxpayer confidentiality in the public interest, requiring the National Tax and Customs Authority (Nemzeti Adó és Vámhivatal, hereinafter ‘the Tax Authority’) to publish data which would otherwise be subject to taxpayer confidentiality. The first publications concerned taxpayers whose tax arrears exceeded 10 million Hungarian forints (HUF), or in the case of legal entities HUF 100 million (corresponding to approximately 28,000 euros (EUR) and EUR 280,000 respectively) (nagy összegű adóhiánnyal rendelkező adózók, hereinafter ‘list of major tax defaulters’), and those who engaged in business activities without registering with the Tax Authority (section 48(3)(a) of Act no. XCI of 1990 on Tax Administration).

On 10 November 2003 Parliament passed Act no. XCII of 2003 on Tax Administration (hereinafter ‘the 2003 Tax Administration Act’), which was then promulgated on 14 November 2003 and entered into force on 1 January 2004. The 2003 Tax Administration Act left the obligation to publish the data of taxpayers with tax arrears unchanged: section 55(3) prescribed the publication of a list of major tax defaulters containing the data of taxpayers whose tax arrears exceeded HUF 10 million (in the case of private individuals). This provision required the Tax Authority to publish the taxpayer's name, home address, commercial premises (where applicable) and tax identification number, as well as the amount of the tax arrears and the legal consequences for taxpayers in respect of whom a final decision established that they had taxes in arrears for the previous quarter and that they had failed to fulfil their payment obligations within the time prescribed by the decision.

According to the explanatory note to the Draft Bill concerning sections 53 to 55 on ‘taxpayer confidentiality’, the text incorporated the provisions on taxpayer confidentiality contained in the previous legislation and explained the exceptional circumstances in which disclosure of tax data was permissible. The explanatory note stated as follows:

On 10 July 2006 Parliament passed Act no. LXI of 2006 amending certain pieces of financial legislation — twenty legislative acts in total — including the 2003 Tax Administration Act (‘the 2006 Amending Act’). Section 114 of the 2006 Amending Act added to section 55 of the 2003 Tax Administration Act a new subsection (5), which prescribed the publication of a list of major tax debtors containing the personal data — the name (company name) and home address (registered office) — of tax debtors (nagy összegű adótartozással rendelkező adózók) whose tax debts exceeded HUF 10 million over a period longer than 180 days (hereinafter the ‘list of major tax debtors’, see paragraph 30 below).

The explanatory report to the Act contained the following passage concerning section 55(5) of the 2003 Tax Administration Act:

The background document submitted by the Minister of Finance to Parliament pointed out, under the heading ‘Whitening the economy’, that the amendments broadened the categories of taxpayers whose personal data could be published by the Tax Authority.

During the general debate held on 20 June 2006, the Minister of Finance explained to Parliament, regarding the amendments to the 2003 Tax Administration Act, that further steps were necessary in order to ‘whiten the economy’ and to reinforce the capacities of the tax and customs authorities to collect State revenue efficiently.

A further amendment to the 2003 Tax Administration Act in 2010 required the Tax Authority to publish a list of taxpayers in respect of whom a final administrative or court decision had established that they had employed undeclared employees (section 55(6)). This list included the taxpayer's name, registered office, tax identification number (in the case of business entities) and address (in the case of private individuals), as well as the date of the final decision. In 2017 the categories of taxpayers subject to disclosure were extended to include those persons who had failed to submit their tax returns for two consecutive years (section 55(8)).

After the events which are the subject of the present case, a further change to the regulation of tax administration came into effect on 1 January 2018 with the entry into force of Act no. CL of 2017 (‘the 2017 Tax Administration Act’). It maintained the publication obligation in respect of tax defaulters and tax debtors. Under the current system the Tax Authority also publishes a list of taxpayers against whom enforcement proceedings have been initiated (section 266(d)), a list of employers who have failed to declare their employees to the tax authorities (section 265), a list of taxpayers who have failed to declare their value-added tax for two consecutive years (section 266(l)) and a list of taxpayers whose tax number has been revoked as a sanction, making it unlawful for them to continue the business activities for which registration is required under the fiscal legislation (section 266(c)). In addition, the Tax Authority makes available on its website a list of taxpayers who have no tax debts vis-à-vis the public revenue (section 260) and a list of so-called ‘reliable taxpayers’ (section 261). Since the enactment of the amendments to the 2017 Tax Administration Act (in force since 1 January 2020) the Tax Authority is furthermore under an obligation to create a search interface that allows access to the data of tax debtors from previous years (dating back to 31 December 2014). This database does not provide access to the full tax debtors' lists from previous years, but enables users to search for information about taxpayers by their names.

The applicant was born in 1966 and lives in Budapest.

The relevant parts of the 2003 Tax Administration Act, as in force at the material time, provided as follows:

Section 53

Section 55

Section 170

Interpretative provisions

Section 178

The explanatory report to the Act contained the following passage concerning section 55(5) of the 2003 Tax Administration Act:

The relevant parts of Act no. CXII of 2011 on the right to informational self-determination and freedom of information (hereinafter ‘the Data Protection Act’), as in force at the material time, provided as follows:

Legal basis for data processing

Section 5

Rights of data subjects

Section 14

Section 17

Section 19

Section 22

Section 23

The Constitutional Court Act, in force as of 1 January 2012, provides as follows:

Section 26

Decision no. 26/2004 (VII.7.) AB of 7 July 2004 of the Constitutional Court concerned the publication of a list of taxpayers who had failed to comply with certain registration requirements. It contained the following relevant passages:

Judgment no. P.23.608/2012/34 of 13 November 2014 of the Budapest High Court (Fővárosi Törvényszék) concerned an action for damages by the claimant on account of the publication of his name and address on the list of major tax debtors under section 55(5) of the 2003 Tax Administration Act between April 2010 and 29 June 2011 and subsequently — following new administrative proceedings — for four days as of January 2012. The Tax Authority had conducted tax compliance proceedings in respect of the claimant and had established tax arrears in the amount of HUF 28,438,544. Since the claimant had failed to pay this amount within the prescribed fifteen days, the Tax Authority had registered the amount as an overdue tax debt. When the claimant failed to pay his tax debts within 180 days, the Tax Authority automatically published his personal data. The claimant argued that the publication of his personal data on the list had been unlawful since it took place while the judicial proceedings for review of the Tax Authority's decision on his tax debts were still ongoing. Furthermore, he argued that the publication in January 2012 had been unlawful, since his tax debts for the relevant period had not exceeded HUF 10 million. The Tax Authority, as respondent, argued that the conditions of publication under section 55(3) and section 55(5) of the 2003 Tax Administration Act differed. Publication under section 55(5) was the automatic consequence of tax debts outstanding for more than 180 days, irrespective of their origin. Publication under section 55(3) served to sanction persons in respect of whom the Tax Authority — during tax compliance proceedings — had established tax arrears exceeding HUF 10 million. The precondition for publication in such cases was that no judicial review proceedings were ongoing or that the courts upheld the administrative decision.

The Budapest High Court dismissed the claimant's action. It found that his data had been published under section 55(5), which provided for the automatic publication of personal information once the 180-day period had expired. It explained, referring to the definition of tax debts and tax arrears, that such publication could take place irrespective of the origin of the tax debts, that is, also in cases where the tax debts were the result of unpaid tax arrears established by the Tax Authority. It held that although judicial proceedings had been ongoing at the time of publication, this could only be relevant in relation to publication under section 55(3) on the list of major tax defaulters and not for publication under section 55(5) on the list of major tax debtors. The court thus concluded that publication had been lawful and dismissed the claimant's action.

The judgment was upheld on appeal by the Budapest Court of Appeal on 19 January 2016 (no. 1.PF.20.168/2015.II).

Judgment no. 8.Pf.20.406/2017/3 of 25 May 2017 of the Budapest Court of Appeal concerned a claimant's civil action requesting the court to order the anonymisation of an online article which linked him to a set of criminal proceedings conducted some seven years previously and which had ended with his acquittal. The claimant maintained that some three years after his acquittal he had started practising as a lawyer and that the article was still accessible and appeared on the list of results following a Google search. The Budapest Court of Appeal held that the claimant's personal data published in the online article could only be processed if the preconditions of either section 4(1) or section 6(1)(b) of the Data Protection Act were met. It held that there was a particular public interest in the prosecution of very serious crimes and that the public had the right to receive information on such matters. However, when balancing the claimant's interest against that of the public the court concluded that seven years after the criminal proceedings and the claimant's acquittal, he had very weighty reasons not to be identifiable in an article linking him to criminal acts. The court also emphasised that the anonymisation of the articles would not jeopardise the substance of the article. The court thus ordered the anonymisation of the article in question.

Judgment no. P.22422/2015/21 of 3 February 2016 of the Budapest High Court originated in a civil action by the claimant, a businessman and moderately successful sportsman, seeking the deletion from the search results of links that led to content, including videos, pictures and written texts, depicting his sexual life and containing negative comments about him. The claimant also sought compensation for damage. Prior to lodging a civil action, the claimant had requested the operator of the search engine to remove the links in question, to no avail. In the course of the proceedings the respondent company operating the search engine had removed the links in question from the search results.

Relying on the case of Google Spain and Google (judgment of 13 May 2014, C-131/12, EU:C:2014:317) of the Court of Justice of the European Union (hereinafter ‘the CJEU’), the Budapest High Court noted that as the operator of the search engine the respondent company qualified as a data processor and could be held liable for unlawful data processing under the Data Protection Act. The court emphasised that under section 14(c) of the Act — apart from cases of mandatory data processing — anyone could request the deletion of his or her personal data irrespective of whether the publication concerned unlawful content or not. Since the respondent company had not removed the disputed link from its search results at the claimant's request (and prior to the civil proceedings), the court held it liable for the unlawful processing of personal data and ordered it to pay compensation to the claimant.

A circular of the National Authority for Data Protection and Freedom of Information of 21 February 2012 concerning the publication of the personal data of local tax debtors reads as follows:

The information available to the Court reveals that in twenty-one of the thirty-four Contracting States surveyed (Albania, Azerbaijan, Bosnia and Herzegovina, Croatia, Estonia, Finland, France, Greece, Ireland, Latvia, Lithuania, North Macedonia, Poland, Portugal, Romania, San Marino, Serbia, Slovakia, Slovenia, Spain and the United Kingdom), public authorities may, and in some cases must, disclose publicly the personal data of tax debtors. Publication in those countries is subject to certain conditions relating to, for instance, whether the tax debtor is an individual or a legal entity (Finland, France and Romania), or to whether the tax debt exceeds a certain limit (Bosnia and Herzegovina, Croatia, Estonia, Greece, Latvia, Lithuania, North Macedonia, Poland, Portugal, San Marino, Serbia, Slovakia, Slovenia, Spain and the United Kingdom). The reasons for publication may range from a ‘simple’ failure to submit a (correct) tax return to established fraud. In Austria, Iceland and the Netherlands the publication of personal data may take place in some contexts involving fiscal matters other than the person's failure to pay taxes.

It is also clear that all the Contracting States in question aim to restrict, in one way or another, the scope of the information published to what appears to be necessary for the identification of the tax debtor concerned. The taxpayer's full name is published in most of the countries, in addition to his or her identification number (Albania, Azerbaijan, Bosnia and Herzegovina, Finland, Greece, Latvia, Poland, Portugal, San Marino, Serbia and Spain), year of birth (Croatia, North Macedonia, Poland and Slovenia), permanent or temporary address (Albania, Croatia, Finland, Ireland, North Macedonia, Slovakia, the United Kingdom) or municipality of residence (Bosnia and Herzegovina and Iceland), the amount of tax debts, the relevant sanction imposed, or the taxpayer's occupation. Also, all the Contracting States concerned release the information in question online, on the government or relevant authorities' websites, with only very few of them restricting access to that information (Finland, Latvia, Portugal and San Marino), whilst some others allow the media to further disseminate the information.

In some Contracting States (Greece, France, the Netherlands, North Macedonia, Poland, Portugal, Romania, Spain and the United Kingdom), the relevant tax authority is under an obligation to notify taxpayers about the disclosure of their personal data. Although a number of safeguards regarding publication are in place in the relevant legislation of the Contracting States concerned, there seem to be no specific mechanisms by which to challenge, restrict or prevent publication in a situation where it does not breach the relevant statutory requirements and is not the result of errors or omissions on the part of the authorities. Indeed, the examples of domestic case-law clearly demonstrate that in those countries where the publication of personal data of tax debtors is provided for in national law, all attempts to challenge such publication as interfering disproportionately with the rights of the persons concerned have so far been unsuccessful.

There appear to be no specific legal provisions in any of the Contracting States concerned which expressly impose an obligation on the relevant authorities to prevent republication of taxpayers' personal data. At the same time such republication is considered as data processing to which the general rules of data protection legislation apply.

The Grand Chamber observes at the outset that the applicant's personal data were first (in the last quarter of 2014) published on the list of major tax defaulters pursuant to section 55(3) of the 2003 Tax Administration Act (see paragraph 25 above), and were then (from 27 January 2016 to 5 July 2019) published on the list of major tax debtors pursuant to section 55(5) of the Act as someone who had tax debts exceeding 100 million forints for a period longer than 180 consecutive days (see paragraphs 26 and 28 above). Whilst the Chamber appears to have examined both instances of publication (see paragraphs 44 and 56 of the Chamber judgment), the Grand Chamber notes that the first publication of the applicant's details was terminated more than six months before the applicant lodged his application under the Convention (on 7 June 2016). It will accordingly limit its examination to his complaint in relation to the second publication, under section 55(5) of the Act.

It is also to be noted that (1) while in his observations to the Chamber, the applicant complained that publication of his details had entailed public shaming adversely affecting his physical and moral integrity, before the Grand Chamber he maintained that publication had infringed his right to reputation. Before the latter, he further submitted (2) that, as of 1 January 2020, his personal data had become accessible through a search interface on the website of the Tax Authority, and (3) that the Tax Authority was liable for the subsequent republication of his personal data by third parties. The Government raised a preliminary objection in respect of each of these three submissions, which the Grand Chamber will consider in turn below.

The applicant complained that the publication of his personal data on the list of major tax debtors on the Tax Authority's website for failure to comply with his tax obligations had infringed his right to respect for private life as provided for in Article 8 of the Convention, which reads:

Article 41 of the Convention provides:

The present case concerns the applicant's complaint that the mandatory disclosure and publication, without his consent, of his personal data including his name and home address on the National Tax and Customs Authority's website, and more specifically on a list of major tax debtors (those whose tax arrears for a defined period exceeded a threshold corresponding to approximately EUR 28,000), for failure to comply with his tax obligations, had infringed his right to respect for private life as provided for by Article 8 of the Convention.

At the outset, I wish to state that I agree with points 1–4 and 6 of the operative provisions of the judgment and that I disagree with points 5 and 7 thereof.

Regarding the reasoning of the judgment leading to the finding that there has been a violation of Article 8 of the Convention, this opinion concurs, while delving deeper into two issues, namely the impugned interference and the balancing of the competing individual and public interests.

One aspect of an individual's right to respect for his or her private life under Article 8 of the Convention is that his or her personal data, including his or her name and home address, cannot be published or disseminated without his or her consent. This aspect, facet or component of the right is very important because it concerns the function, exercise and enjoyment of the right and is part of its core.

The disclosure and publication of an individual's personal data, including his or her name and home address, without his or her consent is therefore an interference with the individual's right to respect for his or her private life under Article 8 of the Convention. The interference in the present case, consisting of the publication of the applicant's name and home address, was not only mandatory but also automatic and was of indefinite duration.

The said interference was exacerbated by the fact that the publication of the data was carried out by the competent tax authority and concerned the applicant's duty as a law-abiding citizen, in this case his compliance with his tax obligations.

This interference was, by its very nature, capable of causing the applicant feelings of shame or humiliation and of having other negative repercussions for him, as well as harmful repercussions on the enjoyment of his private life under Article 8 § 1 of the Convention. The applicant alleged that he had indeed suffered such negative repercussions.

At the same time, the standard of effectiveness enshrined in Article 8 § 1 of the Convention was wholly disregarded, in violation of the principle of effectiveness as a norm of international law, according to which all Convention provisions which safeguard human rights must be practical and effective and be treated as such. In fact, the said interference did not merely render the applicant's right theoretical and illusory, it seriously impaired and in fact extinguished an important aspect or component of the right and, in the process, its very essence.

The judgment (see paragraphs 129, 138 and 139) based its finding that there had been a violation of Article 8 of the Convention on the fact that the respondent State had not demonstrated that the legislature, in particular through section 55(5) of the 2003 Tax Administration Act, had sought to strike a fair balance between the relevant competing individual and public interests.

However, the judgment failed to base its conclusion also on the fact that the said legislation effectively prevented the domestic courts from performing a test of proportionality stricto sensu between the relevant competing interests, a function which is fundamental and indispensable from the Convention standpoint and for the effective protection of human rights, the latter being inherent in or falling within the power of the judiciary. As the Court stated in Kalda v. Estonia (no. 2) (no. 14581/20, § 41, 6 December 2022), albeit in the context of a different human right, when it comes to the restriction of a right there are two available routes for Contracting States to follow. Adapting what the Court said in that case to the facts of the present case, the respondent State should have taken one of the following two routes in the case of L.B. v Hungary: either the legislature should have defined any individual circumstances of taxpayers which might justify not publishing their names and home addresses, or the State should have made provision for the domestic courts to determine the proportionality of the impugned measure themselves.

In the present case, however, neither route for dealing with the interference was followed by the respondent State. In my dissenting opinion in Kalda, cited above, I explain the legal consequences arising when the domestic courts undertake such a proportionality test even though this is not permitted by the relevant legislation.

Indeed, within the system of individual applications, the Court's task is not to examine the case in the abstract (see Kalda, cited above, § 50; Anchugov and Gladkov v. Russia, nos. 11157/04 and 15162/05, §§ 51–52, 4 July 2013; and Strøbye and Rosenlind v. Denmark, nos. 25802/18 and 27338/18, § 115, 2 February 2021). In the present case, the domestic legislation did not permit any appropriate discussion as to why an applicant did not or could not pay the relevant tax amount due, his family status and his financial status in general, or even as to the situation of the national economy at the time. This kind of contextual information is indispensable in the course of an in concreto examination of each particular individual application and especially for conducting the required assessment of proportionality stricto sensu.

In my submission, the absolute lack of a test of proportionality stricto sensu in the present case breached the principle of the effective protection of human rights and led to the violation of Article 8 § 1 of the Convention.

I have already noted above that I disagree with point 5 of the operative provisions of the judgment, according to which the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicant (see also paragraph 145 of the judgment).

I would submit that Article 41 of the Convention, as worded, cannot be interpreted as meaning that ‘[the] finding [of] a violation of a Convention provision’ can in itself constitute sufficient ‘just satisfaction to the injured party’. This is so because the former is a prerequisite for the latter and one cannot take them to be the same (see, to similar effect, paragraphs 5–9 of my joint partly dissenting opinion with Judge Felici in Grzėda v. Poland [GC], no. 43572/18, 15 March 2022; paragraph 2 of my partly dissenting opinion in Anderlecht Christian Assembly of Jehovah's Witnesses and Others v. Belgium, no. 20165/20, 5 April 2022; and paragraph 9 of my partly dissenting opinion in Abdi Ibrahim v. Norway [GC], no. 15379/16, 10 December 2021).

But even if the above reading of Article 41 were wrong I would still make an award for non-pecuniary damage, because I consider that in the particular circumstances of the present case the applicant should receive just satisfaction in respect of such damage.

Failure to award the applicant a sum in respect of non-pecuniary damage for the violation of his right amounts, in my view, to rendering the protection of his right illusory and fictitious (see, to similar effect, the opinions referred to in paragraph 15 above of the present opinion). This runs counter to the Court's case-law to the effect that the protection of human rights must be practical and effective and not theoretical and illusory, as required by the principle of effectiveness which is inherent in the Convention (see Artico v. Italy, 13 May 1980, §§ 33 and 47–48, Series A no. 37).

I would thus award the applicant an amount in respect of non-pecuniary damage, by way of just satisfaction under Article 41 of the Convention. Since, however, I am in the minority, it is not necessary to determine the sum that should have been awarded.

For the foregoing reasons, I voted against points 5 and 7 of the operative provisions of the judgment.

In the light of what has been said above, I conclude that there has been a violation of Article 8 § 1 of the Convention and I would make an award to the applicant in respect of non-pecuniary damage.

We agree that reputation forms a part of personal identity and falls within the scope of private life and that the right to protection of personal data is guaranteed by the right to respect for private life under Article 8. It is also obvious that the applicant's name and home address constitute information about private life, which means that publication of these data amounts to interference with Article 8. There is clear statutory authorisation in Hungarian national law for the publication of debtors' personal data, and we agree with the conclusion of the judgment that this rule pursues a legitimate aim. This legitimate aim is to bring about an improvement in tax discipline and thereby ensure the economic well-being of the country. The further aim of the rule is to protect the rights and freedoms of others by serving the transparency and reliability of business relations. This led the majority in the Chamber to find no violation.

The majority of the Grand Chamber found a violation of Article 8 on the following grounds:

(see paragraphs 137–138 of the judgment).

We have serious objections to this approach, which finds a violation of the Convention based solely on shortcomings in the Hungarian parliamentary review without showing any evidence to that effect.

The applicant alleged that the publication of his personal data on a list appearing on the website of the National Tax and Customs Authority (‘the Tax Authority’), for failure to comply with his tax obligations, infringed his right to respect for private life as protected by Article 8 of the Convention (see paragraph 1 of the judgment).

The Court has held that the protection of personal data is of fundamental importance to a person's enjoyment of his or her right to respect for private and family life as guaranteed by Article 8 of the Convention. Domestic law must afford appropriate safeguards to prevent any such use of personal data as may be inconsistent with the guarantees in Article 8 of the Convention (see Z v. Finland, 25 February 1997, § 95, Reports of Judgments and Decisions 1997-I; S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, § 103, ECHR 2008; and Satakunnan Markkinapörssi Oy and Satamedia Oy v. Finland [GC], no. 931/13, § 137, 27 June 2017) (see paragraph 122 of the judgment).

What the Grand Chamber examined were the general measure and the quality of the parliamentary review. We see serious procedural problems with focusing the scope of the case on these elements. Firstly, the applicant did not request examination of the general measure, thus the judgment ruled ultra petita. Secondly, the issue was not communicated to the parties, the applicant had no opportunity to reflect on it, and the Government could not respond to it in their written observations. Hence the present judgment is a clear example of what the procedural law calls a ‘surprise judgment’, where a court grounds its judgment on elements that were not raised during the deliberation of the case. This clearly violates the requirement of a fair trial. This situation was aggravated by the fact that the burden of proof was reversed and the Court found against the respondent State because it had not demonstrated something that had not been requested (see paragraph 138 of the judgment). According to the case-law of our Court, each party must be given a reasonable opportunity to comment on all relevant aspects of the case, not only in respect of the evidence, but also in respect of the legal issues, that is to say, an opportunity to participate effectively in the proceedings. It is to be emphasised that this also refers to legal arguments raised by the Court of its own motion.

We feel obliged to add the following to the factual background.

The provision concerning the list of major tax defaulters discussed in this case was introduced into the Hungarian legal system for the first time in 1995. It should be noted that Hungary reverted to a market economy in 1990. The Minister of Finance submitted the draft Law to Parliament (amending Tax Administration Act no. XCI of 1990) on 24 October 1995. Between 31 October 1995 and 5 December 1995 four parliamentary committees (constitutional affairs, economic affairs, budget and agriculture respectively) discussed the draft Law on four occasions. Subsequently, the full Parliament also discussed it several times, and members of Parliament intervened in that debate 49 times.

The explanatory statement by the Secretary of State at the Ministry of Finance emphasised the following:

During the parliamentary debate one of the most contentious topics was precisely this provision, and especially its constitutionality, and the Government withdrew a part of the proposal. (For the list of documents relating to the draft Law in Hungarian see https://www.parlament.hu/iromany/01548ir.htm)

The provision enacted in Act CX of 1995 — which entered into force on 1 January 1996 — is exactly and literally the same as section 55(3) of the 2003 Tax Administration Act. The subsequent amendments to the Tax Administration Act (in 2006 and 2017) upheld this provision without any change. (The rule was supplemented in 2006 by the list of major tax debtors — section 55(5), see paragraph 13 of the judgment.)

The list of major tax debtors was part of a statutory scheme set up to respond by means of deterrence to the phenomenon of non-compliance with the tax rules. The national legislature introduced through the 2006 amendment of the 2003 Tax Administration Act a new provision, section 55(5), whereby lists of tax debtors at large were to be published. These measures were aimed at complementing the schemes for the publication of information on tax defaulters under section 55(3) and on companies that had failed to register with the Tax Authority. Other mandatory lists for publication concerned employers who had failed to declare their employees and taxpayers who had not submitted a tax return for two years. As is apparent from the preparatory works to the 2006 amendments, the legislature considered this new measure necessary for the purposes of ‘whitening the economy’ and reinforcing the capacities of the tax and customs authorities. The justification for broadening the categories of taxpayers subject to publication to include tax debtors was that unpaid tax liability was not only a matter of tax arrears established in tax inspection proceedings, but could also be the result of any conduct in breach of the person's tax payment obligations.

Section 55(5) differs from section 55(3) only in the manner in which the published tax debt arose: while subsection (3) refers to the ‘tax arrears’ (adóhiány), subsection (5) refers to the ‘tax debt’ (adótartozás) that is owed. From the point of view of the raison d'être of the legal institution and its impact on human rights, it is irrelevant whether the non-payment of the tax was determined by a decision of the tax authority or transpired from the taxpayer's declaration; similarly, from the point of view of tax payment morals — or the lack thereof — the two situations are of the same nature. This was precisely one of the reasons for the introduction of subsection (5), in order to remedy the lack of precision of the previous rule. That is why we think the debate surrounding section 55(3) is still important.

Moreover, the constitutionality of the rule was accepted by the Constitutional Court following judicial review proceedings (see paragraph 34 of the judgment).

And let us add that, when in 2000 the European Commission assessed the adequacy of the protection of personal data in Hungary, the preamble to its Decision stated as follows:

The Commission concluded in Article 1 of the Decision that ‘[f]or the purposes of Article 25(2) of Directive 95/46/EC, for all the activities falling within the scope of that Directive, Hungary is considered as providing an adequate level of protection of personal data transferred from the Community1..’

The Grand Chamber majority decided that the necessity test should focus on the quality of the parliamentary and judicial review and the risk of abuse of general measures (see paragraph 125 of the judgment). In this regard they cite Correia de Matos v. Portugal ([GC], no. 56402/12, § 117, 4 April 2018), stating that ‘… the Court has repeatedly held that the choices made by the legislature are not beyond its scrutiny and has assessed the quality of the parliamentary and judicial review of the necessity of a particular measure.’ The case in which this approach was first implemented was Animal Defenders International v. the United Kingdom ([GC], no. 48876/08, § 108, ECHR 2013 (extracts)), a controversial 9:8 judgment in a case that bears no similarity to the present one.

We would just point out three substantial differences between Animal Defenders and the present case. Firstly, in Animal Defenders the applicant complained under Article 10 about the statutory prohibition of paid political advertising on radio and television (§ 76); the applicant was not, as in the present case, a gross tax debtor seeking to assert his privacy rights. Secondly, the applicant claimed that the proportionality of a general measure fell to be tested against, and demonstrated by, the practical and factual realities of an individual case (§ 83). Thirdly, Animal Defenders used the fact of the exceptionally detailed parliamentary debate in order to exonerate the respondent State. We know the political science clichés about the functioning of the United Kingdom Parliament, where the governing majority, essentially the government, decides on everything and the true function of the House, stirred by an active opposition, is to question and debate the policy of the government.

In our case the applicant did not seek a test in respect of the general measure, and the role of the parliamentary debate was reversed: the exception became the rule, and a deviation from the rules of parliamentary debate led the majority to find a violation of the Convention. We would quote the following passage from Animal Defenders (§ 111):

We would add an important remark from the concurring opinion of Judge Bratza in that case (§ 17):

As regards the other case referred to by the judgment (Correia de Matos, cited above), in that judgment the Court stated that ‘[t]here is therefore no doubt that Portuguese law on criminal procedure is particularly restrictive when it comes to the possibility for accused persons to conduct their own defence without legal assistance if they wish to do so’ (§ 144). The Court further noted that the Portuguese legislature had reviewed certain questions relating to mandatory assistance in criminal proceedings, but that the legislative choice of this legal defence mechanism remained unchanged, in one case following confirmation by the Constitutional Court in 2001 of its compatibility with the Constitution and the Convention (§ 146). This and nothing more was effected by the legislation. Nevertheless the Court approved this very limited parliamentary review and held, by nine votes to eight, that there had been no violation of Article 6 §§ 1 and 3 (c) of the Convention. This makes even stranger the conclusion reached in our case.

We are somewhat sceptical as to the possibility of an objective assessment of the quality of parliamentary work. Paradoxically, the more controversial the issue, the more debates and expert documents there are, suggesting prima facie a higher quality of review, while the greater the agreement among parliamentarians about the necessity of an interference, the fewer debates and expert documents there are, suggesting prima facie a lower quality of review. The approach adopted by the majority may end up inciting parliamentary majorities more frequently to commission accommodating expert opinions justifying an interference with Convention rights, in order to satisfy the test of the quality of parliamentary review in the Strasbourg proceedings. At the same time, the opposition's efforts to challenge a measure may ultimately tip the balance in favour of the contested measure, under the test in question.

In this context we agree with the view expressed by Judge Kūris in his separate opinion, that the respondent State could, hypothetically, execute the instant judgment by re-enacting the impugned measures, thereby ensuring that the parliamentary review meets the standards set by the majority. And what if complaints arrive from the countries that similarly publish the addresses of tax debtors (Albania, Croatia, Finland, Ireland, North Macedonia, Slovakia, the United Kingdom)? Will the Court examine the legislative history in each case?

While the above-mentioned cases examined the general measures as applied to the concrete circumstances of the case, the individual assessment in the present case is completely absent. The Court consistently refrains from dealing with actio popularis type requests, yet this judgment does not deal with the person of the applicant at all.

When assessing the balancing of private rights and the public interest, the factual background to the case should not be forgotten. The applicant's company issued fictitious invoices in the value of hundreds of millions of Hungarian forints. The corresponding amounts were paid into the company's account, from which they were withdrawn in cash by the applicant. The first-instance court could only establish from the receipts attached by the applicant that he was able to produce at any given time the documents that seemed necessary to substantiate his claims. It is also worth mentioning that a part of the applicant's tax debt (450 million Hungarian forints [HUF], approximately 1,140,000 euros [EUR]) was not paid and could not be reimbursed in the enforcement proceedings; indeed, ultimately it had to be cancelled in 2019 as being time-barred.

Instead of conducting an abstract review of the legislative process the Court should have decided on the measures taken by the authorities in the specific proceedings. The justification for the finding of a ‘narrow’ violation is simply that Parliament did not sufficiently consider the balance to be struck between the public interest in disclosure of the data and the rights protected under Article 8 as private interests, before enacting a law serving a legitimate purpose. We cannot agree with this argument.

In our opinion, the rule itself and not the path leading to it should have been examined, and a violation could have been established if the result did not meet the requirement of necessity in a democratic society, that is, if the rule unreasonably gave precedence to the public interest over private interests. However, the judgment does not make such a finding (which would have affected at least seven other countries).

Our opinion on the case is basically similar to the findings of the Chamber judgment, to the effect that the disclosure of the private data in question did not place a substantially greater burden on the applicant's private life than was necessary to further the State's legitimate interests.

Firstly, it is true that once the legislature had established the criteria for publication, the Tax Authority was only required to make a factual determination as to whether the information fell within the exceptions to tax confidentiality under section 55(5), with no further argument or inquiry into the competing considerations being required, namely the interest in disclosure and the interest of the taxpayer in the protection of his or her privacy. While in theory it would be possible to empower the Tax Authority to examine the various interests at stake in publication, we have doubts as to whether it was reasonable to expect such an assessment to be conducted in sufficient depth in situations where the information was extensive and concerned thousands of taxpayers. Moreover, if the Tax Authority were to decide how to interpret and apply the exceptions in the Tax Administration Act in each individual situation, it would risk distorting the legislature's aim in enacting the publication scheme, namely deterrence on the one hand and scrutiny by business partners on the other. Therefore, we see no reason to criticise the legislature for finding that a general measure was a more feasible means of achieving the said aims — and, by implication, those considered legitimate under Article 8 § 2 of the Convention — than a provision allowing for case-by-case examination.

Moreover, as to the nature of the information disclosed on the list in question and its potential harm to the persons concerned, we note that it did not affect an important aspect of an individual's existence or identity or any intimate aspects of private life. As regards the applicant's argument that the section 55(5) publication scheme was overbroad and inconsistent with the principle of data minimisation, we find it significant that the disclosure of tax information was structured as an exception to the general rule of tax confidentiality. It is apparent that Parliament, by specifically providing for the disclosure of tax identity information in relation to tax debts, considered in substance that the public interest in ensuring tax compliance and the private interests of potential business partners outweighed, in certain circumstances, the privacy interests of tax debtors requiring that tax identity information generally be kept confidential.

Furthermore, Parliament itself put in place safeguards to tightly restrict disclosure, tailoring the provisions of the 2003 Tax Administration Act to the risk posed by the tax debtor to public revenue and to potential business partners. Firstly, only those individual tax debtors whose tax debts exceeded HUF 10 million (EUR 28,000) came within the sweep of the publication requirement. Secondly, an additional precondition for publication on the list of major tax debtors was that the taxpayer had failed to fulfil his or her payment obligations for 180 days. We find these thresholds material to the assessment of the proportionality of the measure here in issue. We thus consider that the legislature made the necessary distinction between different types of taxpayers subject to disclosure, limiting the interference with private life to those whose conduct presented a considerable risk to public revenue or to potential business interests.

Since the cornerstone of the publication scheme was identifying taxpayers who had failed to fulfil their payment obligations, the competent national authorities were entitled to consider that adding the home address to the tax debtors' list might be instrumental to the success of the publication scheme. It also ensured the accuracy of taxpayer information by making it possible to distinguish between taxpayers who had the same name, in order not to give a misleading impression of third parties. The Court cannot criticise the domestic authorities for finding that using a different category of data, namely the tax identification number, which was apparently indecipherable for the public, was not a viable solution.

Finally, we note that although tax debtors could not seek the erasure of their private data from the list, any interference with their private life was subject to a temporal limitation and the publication scheme was set up in a manner ensuring that they were not to be identified on the list of major tax debtors for any longer than was required for the purpose of disclosure. The taxpayers' personal data were removed from the list of major tax debtors once they had paid their tax debts or the limitation period had expired, as in the applicant's case.

As regards the repercussions on and risk of harm to the enjoyment of private life of the persons concerned, the Court should have considered that, even accepting the applicant's argument that he had a privacy interest in the non-disclosure of his home address combined with financial information about him, these repercussions did not appear excessive in the particular circumstances of the present case. We attach considerable weight in our assessment to the context in which those data were published. As described above, there is an obvious public aspect to tax collection and a taxpayer cannot reasonably expect that failure to settle his or her tax liabilities, especially in a field so much in the public eye as tax evasion, will remain a purely private matter. Thus, the interest in non-disclosure asserted by the applicant lay in practice not in preserving the privacy of purely personal matters, but rather in preserving his anonymity regarding his conduct as a taxpayer.

On the basis of the above considerations, we cannot find that the impact of the publication of the applicant's personal data outweighed the convincing reasons justifying the general measure that are described above. In the circumstances of the present case we are persuaded that there were relevant and sufficient reasons for the publication of the applicant's personal data and that the contested measure was subject to important limitations and was accompanied by effective and adequate safeguards against abuse. It was therefore not disproportionate to the legitimate aims pursued.

Accordingly, we conclude that there has been no violation of the applicant's right to respect for his private life as guaranteed by Article 8 of the Convention.