Judicial Development of EU Fundamental Rights Law in the Digital Era – A Fresh Look at the Concept of ‘General Principles’
General Principles of EU Law and the EU Digital Order, edited by Ulf Bernitz, Xavier Groussot, Jaan Paju and Sybe de Vries (Kluwer Law International 2020)
16 Pages Posted: 3 Oct 2019 Last revised: 5 Jan 2020
Date Written: September 1, 2019
Since the Charter of Fundamental Rights was made formally binding, it is not clear what continued use the category of ‘general principles’ should have in EU law. The Charter introduced a whole range of new standards against which national laws and practices can be assessed. The practice of the Court of Justice of the EU shows that more rights can be introduced as ‘interpretations’ of particular Charter provisions or merely by reference to Charter Explanations. Thus, it would thus seem that there is now limited role for principles in EU fundamental rights law. But we should not be deceived by the less frequent use of the concept of ‘general principles’ in the CJEU judgments. By no account does it mean that judicial activism has stopped or that the masters of the Treaties or the EU legislator have necessarily gained more control over the structure of EU fundamental rights law.
In this chapter I consider the ways in which the Court of Justice of the EU is developing EU fundamental rights law in the Digital Era. I start by discussing the transactional and non-transactional protection which EU (private) law offers to consumers of digital products and users of digital services. I then move on to consider EU legislation protecting the fundamental rights of individuals in the Digital Market. I discuss the ways in which EU fundamental rights interact with private law-based relationships between consumers and users, on the one hand, and online traders and providers of digital services, on the other, given the ways in which EU fundamental rights have been interacting with national private laws and contracts so far. I then move on to investigate the instances in which the Court of Justice of the EU is developing an overlay of EU fundamental rights law, adding, in different ways, to the legislative content of EU fundamental rights law in the digital context. This overlay can be presented as containing additional ‘principles’ of EU fundamental rights law, which could even be described as ‘general principles’ in the light of the fact that they often themselves express fundamental rights, can be balanced against Charter rights or prevent more expansive interpretation of EU legislation protecting privacy and personal information.
Keywords: fundamental rights, general principles, EU Digital Market, privacy and personal information, horizontal effect, protection of users
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