Immanuel Kant and Implementation of the EU Data Protection Directive

Abstract

European Union (EU) law allows a considerable amount of freedom for Member States to implement Data Protection Directive 95/46 with regard to their particular legal and cultural circumstances. It is thus particularly difficult to state with certitude that a particular implementation violates the Directive. At the same time, the increased size of the Union means that traditional methods for determining whether a Member State implementation violates the Directive are in most cases no longer useful. Kant’s categorical imperative provides a useful logical framework for testing the inherent compatibility of an implementing national rule with the basic policy that underlies it. National legislators and data protection authorities would do well to keep it in mind and exercise self-restraint in implementation of the Directive, by taking into account not only their own national situations, but the possible implications of converting their national rules into rules of general application that would apply around the EU. If the result of this test is that the rules would become unworkable if applied universally or would lead to an absurd result or an inherent contradiction, then this is a strong indication that the rule may violate at least the spirit of the Directive. Such unconventional thinking is needed to provide new mechanisms for ensuring that EU data protection legislation takes into account not only national characteristics, but also the cross-border nature of the Directive from which it derives.

Keywords: Immanuel Kant, European Union, jurisdprudence, legal philosophy, data protection, privacy