The Essence of the Fundamental Rights to Privacy and Data Protection: Finding the Way Through the Maze of the CJEU’s Constitutional Reasoning

The Essence of Fundamental Rights in EU Law, 17-18 May 2018, Leuven

21 Pages Posted: 9 Feb 2019

See all articles by Maja Brkan

Maja Brkan

Maastricht University - Faculty of Law

Date Written: May 17, 2018

Abstract

In the constitutional shaping of the concept of essence of fundamental rights, the case law of the Court of Justice of the EU (CJEU or 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 on perception of the essence in other fields of law, but also on the constitutional doctrine more generally. This paper 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 cases Schrems and Digital Rights Ireland 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 analysed as an example of fine-tuning of the CJEU’s approach towards the normative understanding of this concept. Against this backdrop, the paper 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 generalised method for determination of infringement of essence in fundamental rights jurisprudence.

Keywords: EU Charter of Fundamental Rights, Essence of Fundamental Rights, Privacy, Data Protection, Schrems Case, Tele2 Sverige Case, Opinion 1/15

Suggested Citation

Brkan, Maja, The Essence of the Fundamental Rights to Privacy and Data Protection: Finding the Way Through the Maze of the CJEU’s Constitutional Reasoning (May 17, 2018). The Essence of Fundamental Rights in EU Law, 17-18 May 2018, Leuven, Available at SSRN: https://ssrn.com/abstract=3325267

Maja Brkan (Contact Author)

Maastricht University - Faculty of Law ( email )

P.O. Box 616
Maastricht, 6200
Netherlands

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