Privacy, data protection and the role of European Courts: Towards judicialisation and constitutionalisation of European privacy and data protection framework

Abstract

This chapters aims to analyse the impact of the European courts on the protection of personal data and privacy protection in Europe. The chapter focuses on the role of the Court of Justice of the EU (CJEU) in the development and growing importance of the fundamental right to data protection. More precisely, it is argued that the CJEU acts as a 'new emperor' that pushes towards constitutionalisation of data protection, not only through expressly recognising data protection as a fundamental right, but also putting to it a new constitutional dimension through the use of the reasoning relating to the 'essence' of fundamental rights. Moreover, the chapter analyses the relationship between the CJEU and the European Court of Human Rights in cases related to privacy and data protection and points out potential clashes and contradictions between the two courts in this regard. It will be analysed how the (internal and external) expansion of the fundamental rights to data protection and privacy on the EU level fits within the framework of the ECHR. The third level of the analysis - protection of data protection and privacy by national courts - will be only briefly touched upon, but cannot be avoided from the perspective of multilevel system of protection of fundamental rights in Europe.