Judgment No. 20 of 2019
Giorgio LATTANZI, President, Nicolo' Zanon, Author of the Judgment
In this case, the Court considered a referral order from an administrative tribunal challenging a provision of a transparency law that imposed a duty to publish fiscal data concerning income,
assets, and involvement and shares in companies concerning all managers working for the public administrations, irrespective of their position, and extending to their spouses and relatives up
to the second degree. The Court affirmed the admissibility of the questions and its own authority to rule, with erga omnes effect, on cases that raise questions of compatibility with both the
Constitution and the Charter of Fundamental Rights of the European Union (except where it makes a reference for a preliminary ruling for questions of the interpretation or invalidity of
European law). In such cases, the Court specified that its ruling will be based on internal constitutional provisions and European law if applicable, according to whichever system is most
appropriate to the specific case. It also stressed the importance of its constitutional interpretation of the fundamental rights guaranteed by the CFR, which allow it to be interpreted in
harmony with national tradition, without prejudice to ordinary courts' ability to refer matters to the ECJ. The Court pointed out that the case involved the balancing between two rights:
the right to the privacy of personal data, understood as the right to control the spread of information about oneself, and the right of citizens to have free access to the data and information
held by the public administrations. It observed that the digital context, which both heightens threats to personal security and increases the ability to provide access and circulate information.
The Court used a proportionality test to assess the legislative choice expressed in the challenged provision, pointing out that European law also embraces the principle of proportionality in
this context. Examining the evolution of the duty to publish, the Court noted the passage from "accessibility" of information, a regime under which interested parties could request information, to "availability," where information is published, for example online, for the general population. It also noted the legitimate purpose of the provision, which was to grant widespread public oversight on the use of public funds and carrying out of public functions, as an anti-corruption measure. It found that the provision partly failed the test of proportionality in the part in which it placed the duty to publish the full range of data (which formerly applied only to political positions accountable to voters) on all public managers without distinction. The Court found that the indiscriminate application of duties to publish such an extensive quantity of data, which could, depending on the position in question, be irrelevant for the purpose of granting oversight relating to public functions and the use of public funds, was inherently unreasonable, both because it created a confusing and unmanageable quantity of data that private citizens did not have the tools to navigate (failing to meet the requirement that lowering the protection of one right should result in an increase in the protection of another), and because it invited curious digging into the private lives of managers and their families rather than facilitating the correct informing of the public. Nor did the measure meet the requirement of being the least restrictive option. Finally, the provision's application to all managers without distinction was held to be unconstitutional. As a temporary solution, the Court pointed to a classification of managers carried out by the legislator in a provision of a different law.