Irresistible force meets immovable object over a Bavarian lager

Jeremy Phillips

I’ve spent the day wondering why I’ve heard nothing about Case C-28/08 P Commission of the European Communities v The Bavarian Lager Co. Ltd, even though Advocate General Eleanor Sharpston QC has delivered herself of a 226-paragraph provisional Opinion today. It’s a data protection issue.

The Bavarian Lager Co. Ltd, disappointed that the Commission had discontinued proceedings against the United Kingdom for allegedly breaching Community regulations by keeping Bavarian brews out of British pubs, wanted the names of a number of parties who attended a meeting in 1996, during the course of the Commission’s administrative procedures, which Bavarian Lager wished to attend but was not permitted to do so. Supported by the European Data Protection Supervisor, the company sued to get those names. The Court of First Instance annulled the Commission’s decision not to give out those names and the Commission appealed to the ECJ. The Advocate General, who has advised the Court to dismiss the Commission’s appeal, prefaces her Opinion with the following remarkable passage:
“1. A democratic society governed by the rule of law has a fundamental interest both in wide public access to documents and in ensuring the protection of individual privacy and integrity. Both public access to documents and the protection of privacy are fundamental rights duly recognised under European Union law.

2. The present appeal brings into sharp focus the relationship between those two rights. Is there an essential, operational conflict between the provisions of the secondary legislation adopted by the European Union, in the form of the regulations concerning, respectively, access to documents and the protection of personal data? Or are the regulations capable of being harmoniously reconciled – and, if so, how precisely is this to be achieved?

3. Framed in those terms, the problem has much in common with the conundrum inherent in the question posed by Isaac Asimov: ‘What would happen if an irresistible force met an immovable object?’ Replace ‘irresistible force’ by the right of access to documents and ‘immovable object’ by the right to protection of personal data and we have a vivid illustration of the intrinsic complexity of the appeal brought by the Commission before the Court of Justice.

4. But the biggest surprise is not that questions like those encountered in scientific fields can arise in jurisprudence but rather that, as we shall see, the answer to be given also appears to be inspired by Asimov’s. After analysing the concepts of ‘irresistible force’ and ‘immovable object’, Asimov takes the view, essentially, that no universe with such inherent contradictions can exist, so that the question is meaningless and should not be answered. The solution that I suggest to the Court of Justice for this appeal also starts from the necessity adequately to define the legal concepts embodying the rights that allegedly collide. The clash will then be seen to be more apparent than real”.

Those interested in the law can read on, here. Those interested in Asimov can start here.

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