Abstract
AbstractIn the constitutional shaping of the concept of essence of fundamental rights, the case law of the Court of Justice of the EU (“CJEU” or “the Court”) in the field of privacy and data protection plays a crucial role. The Court’s interpretation of this notion had a considerable impact not only jon perception of the essence in other fields of law, but also on the constitutional doctrine more generally. This Article focuses on specificities of the notion of essence of fundamental rights to privacy and the protection of personal data from Articles 7 and 8 of the Charter of Fundamental Rights of the EU. After a general analysis, situating this notion into the framework of multi-level protection of fundamental rights in Europe, the Article addresses further interpretative challenges relating to the essence in the Court’s case law. At the core of the analysis are the Schrems and Digital Rights Ireland cases, where the CJEU developed, for the first time, the modalities of the breach of essence of fundamental rights to privacy and data protection and laid down constitutional foundations for interpretation of this notion. Further jurisprudence, including the Tele2 Sverige and Opinion 1/15 cases, is analyzed as an example of fine-tuning of the CJEU’s approach towards the normative understanding of this concept. Against this backdrop, the Article elaborates on the importance of insights in the fields of privacy and data protection for the general constitutional understanding of the concept of essence and proposes a generalized method for determination of infringement of essence in fundamental rights jurisprudence.
Highlights
Introduction of Minimum StandardDigital Rights IrelandThe examination of the case law of the CJEU shows that the essence of the fundamental right to data protection is an even more elusive concept than the essence of the right to privacy
The cornerstone of the analysis focuses on cases Digital Rights Ireland[5] and Schrems[6] where the CJEU developed, for the first time, the modalities of the breach of essence of fundamental rights to privacy and data protection and laid down constitutional foundations for interpretation of this notion
This latter approach questions the usefulness and added value of the concept of essence[24] and designates it as a non-viable alternative to proportionality.[25]. This dilemma, originating from the national constitutions and the related doctrine, came to light with the binding nature of the Charter which, in Article 52(1), guarantees that “[a]ny limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms.”[26]. Before addressing the question of interpretation of this notion within the framework of privacy and data protection, a more general question of whether the notion of essence should have an independent value in the system of EU fundamental rights protection must be addressed first
Summary
.”22 Differently, the relative approach constructs essence as a redundant concept, building upon the premise that all interferences with fundamental rights can be determined with the deployment of the principle of proportionality.[23] This latter approach questions the usefulness and added value of the concept of essence[24] and designates it as a non-viable alternative to proportionality.[25] This dilemma, originating from the national constitutions and the related doctrine, came to light with the binding nature of the Charter which, in Article 52(1), guarantees that “[a]ny limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms.”[26] Before addressing the question of interpretation of this notion within the framework of privacy and data protection, a more general question of whether the notion of essence should have an independent value in the system of EU fundamental rights protection must be addressed first
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