In Search of the Concept of Essence of EU Fundamental Rights Through the Prism of Data Privacy

Abstract

This article aims to shed light on the notion of essence of fundamental rights that has been relied upon by the Court of Justice of the EU (CJEU) in the Schrems and Digital Rights Ireland cases. This article places the notion of essence into the framework of multi-level protection of fundamental rights in Europe, arguing that this concept has its origins not only in case law of the CJEU concerning the ‘very substance’ of fundamental rights, but also in the national constitutional traditions of Member States and the case law of the European Court of Human Rights. This article further elaborates on the constitutive elements of this notion and proposes a classification of the different types of breaches of the essence of fundamental rights. Finally, while elaborating on the relationship between the notion of essence and the principle of proportionality, this article proposes an EU methodology for determining a breach of the essence of a fundamental right.