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Making the Essence of Fundamental Rights Real: The Court of Justice of the European Union Clarifies the Structure of Fundamental Rights under the Charter

ECJ 6 October 2015, Case C-362/14, Maximillian Schrems v Data Protection Commissioner

Published online by Cambridge University Press:  28 July 2016

Tuomas Ojanen
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Keywords

data protectionprivacyEUUS
Type
Case Note
Information
European Constitutional Law Review , Volume 12 , Issue 2 , September 2016 , pp. 318 - 329
Copyright
Copyright © The Authors 2016 

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Footnotes

*

Professor of Constitutional Law, University of Helsinki, Director of the Research Consortium ‘Laws of Surveillance and Security’, funded by the Academy Finland. This case note is the product of that project.

References

1 Commission Decision 2000/520/EC of 26 July 2000 pursuant to Directive 95/46/EC of the European Parliament and of the Council on the adequacy of the protection provided by the ‘safe harbour’ privacy principles and related frequently asked questions issued by the US Department of Commerce (OJ 2000 L 215, p. 7).

2 Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (OJ 1995 L 281, p. 31).

3 Case C-362/14 Maximillian Schrems v Data Protection Commissioner, at para. 94.

4 At para. 95.

5 Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC (‘Data Retention Directive’).

6 Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC, OJ 2006 L105, p. 54.

7 The discussion of the Digital Rights Ireland judgment is wide in scope and rich in details. See e.g. Boehm, F. and Cole, M. D., Data retention after the Judgement of the Court of Justice of the European Union. Munster/Luxembourg, 30 June 2014, <www.janalbrecht.eu/fileadmin/material/Dokumente/Boehm_Cole_-_Data_Retention_Study_-_June_2014.pdf>>Google Scholar, visited 22 June 2016; Fabbrini, F., ‘Human Rights in the Digital Age: The European Court of Justice Ruling in the Data Retention Case and its Lessons for Privacy and Surveillance in the U.S.’, 28 Harvard Human Rights Journal (2015) p. 65-95 Google Scholar; Guild, E. and Carrera, S., ‘The Political and Judicial Life of Metadata: Digital Rights Ireland and the Trail of the Data Retention Directive’, CEPS Paper in Liberty and Security No. 65 (May 2014) [Policy Paper]Google Scholar; Linskey, O., ‘The Data Retention Directive is incompatible with the rights to privacy and data protection and is invalid in its entirety: digital rights Ireland. Joined Cases C-293 & 594/12, Digital Rights Ireland Ltd and Seitlinger and others, Judgment of the Court of Justice (Grand Chamber) of 8 April 2014’, 51(6) CMLR (2014)Google Scholar; Tracol, X., ‘Legislative genesis and judicial death of a directive: The European Court of Justice invalidated the data retention directive (2006/24/EC) thereby creating a sustained period of legal uncertainty about the validity of national laws which enacted it’ 30(6) Computer Law & Security Review (2014) p. 736-746 CrossRefGoogle Scholar; and Ojanen, T., ‘Privacy Is More Than Just a Seven-Letter Word: The Court of Justice of the European Union Sets Constitutional Limits on Mass Surveillance. Court of Justice of the European Union, Decision of 8 April 2014 in Joined Cases C-293/12 and C-594/12, Digital Rights Ireland and Seitlinger and Others ’, 10 EuConst (2014) p. 528-541 Google Scholar.

8 See Ojanen, T., ‘Rights-Based Review of Electronic Surveillance after Digital Rights Ireland and Schrems in the European Union’, in F. Fabbrini and S. Schulhofer (eds.), Surveillance, Privacy and Transatlantic Relations (Hart forthcoming 2016)Google Scholar.

9 There is already a lively discussion and debate over these issues in e.g. Verfassungsblog, available at: <verfassungsblog.de/en/>, visited 22 June 2016.

10 The distinction between principles and rules builds upon the work of Robert Alexy. See Alexy, R., A Theory of Constitutional Rights (Oxford University Press 2002)Google Scholar. For a useful summary, including critique of Alexy’s model, see Scheinin, M., ‘Terrorism and the Pull of “Balancing” in the Name of Security’, EUI Working Paper 11/2009, p. 55-63 Google Scholar.

11 See Schyff, G. van der, ‘Cutting the Core of Conflicting Rights: the Question of Inalienable Cores in Comparative Perspective’, in E. Brems (ed.), Conflicts between Fundamental Rights (Intersentia 2008) p. 131-147 Google Scholar.

12 See e.g. Golder v the United Kingdom where the court acknowledged the very essence of Art. 5.4 ECHR in the context of the deprivation of a mentally disabled person’s liberty as follows: ‘…Mental illness may entail restricting or modifying the manner of exercise of such a right … but it cannot justify impairing the very essence of the right.’ ECtHR 21 February 1975, App. No. 4471/70, Golder v United Kingdom § 38. See also e.g. ECtHR 12 July 2001, App. No. 42527/98, Prince Hans-Adam II of Liechtenstein v Germany § 44; ECtHR 25 February 1982, App. No. 7511/76, Campbell and Cosans v United Kingdom § 41 and ECtHR 7 February 2006, App. No. 60856/00, Mürsel Eren v Turkey § 44.

13 UN Doc. CCPR/C/21/Rev.1/Add. 9, para. 13. See also Report to the Human Rights Council by the Special Rapporteur on human rights and counter-terrorism, A/HRC/13/37, para. 17.

14 ECJ 11 January 1977, Case C-4/73, Nold v Commission (1974) ECR 491, para. 14.

15 For an overview and critical discussion of the case law of the German Constitutional Court on the essential core, see Alexy, supra n. 10, p. 192-196.

16 According to the ECtHR, this condition ‘not only requires that the impugned measure should have some basis in domestic law, but also refers to the quality of the law in question, requiring that it should be accessible to the person concerned and foreseeable as to its effects’. ECtHR 4 May 2000, Case No. 28341/95, Rotaru v Romania § 52. For the requirements of foreseeability and precision, see e.g. ECtHR 2 July 1984, Case 8691/79, Malone v United Kingdom § 67 and Rotaru v Romania § 57. As the ECHR, as interpreted by the ECtHR, features as a minimum standard of protection within the EU legal order, these considerations on the ‘quality of the law’ are also relevant in the context of ‘provided by the law’ criterion under Art. 52.1 of the Charter.

17 Art. 52.3 of the Charter provides as follows: ’3. In so far as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection.’

18 Given that several provisions of the Charter are also based on the rights guaranteed in instruments adopted in the field of human rights within the United Nations, the International Labour Organization and the Council of Europe, there is a strong case for the interpretive principle of the Charter, including the permissible limitations test clause under Art. 52.1, that these provisions of the Charter must be interpreted by taking into account those instruments, including the interpretation given to them by their monitoring bodies. See EU Network of Independent Experts on Fundamental Rights, Commentary of the Charter of Fundamental Rights of the European Union, p. 17-18.

19 For the permissible limitations test under the International Covenant on Civil and Political Rights, see Scheinin, M., The right to privacy. Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism (A/HRC/13/37, December 2009)Google Scholar para. 17.

20 Scheinin, M., ’The Essence of Privacy, and Varying Degrees of Intrusion’, Verfassungsblog, 7 October 2015, <verfassungsblog.de/en/the-essence-of-privacy-and-varying-degrees-of-intrusion/>>Google Scholar, visited 22 June 2016.

21 ECJ 6 October 2015, Case C-362/14, Maximillian Schrems v Data Protection Commissioner, para. 98.

22 Judgments of the German Federal Constitutional Court, BVerfGE 34, 238 (245). Citation is from Alexy, supra n. 10, p. 193-194.

23 ECJ 8 April 2014, Joined Cases C-293/12, C-594/12, Digital Rights Ireland and Seitlinger and Others, at para. 39.

24 See ECtHR 4 December 2008, Case Nos 30562/04 and 30566/04, S and Marper v United Kingdom § 102, ECHR 2008-V.

25 Supra, n. 21, para. 95.

26 Supra n. 23, para. 39.

27 Supra n. 23, para. 39.

28 The phrase is originally from General Michael Hayden, former director of the NSA and the CIA, and relates to the comment by SA General Counsel Stewart Baker that ‘metadata absolutely tells you everything about somebody’s life. If you have enough metadata, you don’t really need content.’ See Cole, D., ’We kill People Based on Metadata’ The New York Review of Books (10 May 2014), <www.nybooks.com/daily/2014/05/10/we-kill-people-based-metadata/>>Google Scholar, visited 22 June 2016.

29 Statement by Martin Scheinin, LIBE Committee Inquiry on Electronic Mass Surveillance of EU Citizens, Hearing, European Parliament, 14 October 2013, p. 4.

30 Scheinin, M. and Vermeulen, M., ‘Unilateral Exceptions to International Law: Systematic Legal Analysis and Critique of Doctrines that Seek to Deny or Reduce the Applicability of Human Rights Norms in the Fight against Terrorism’, EUI Working Papers Law No. 2010/08, especially at pp. 49-50 Google Scholar

31 Posner, R. A., Not a Suicide Pact: The Constitution in a Time of National Emergency (Oxford University Press 2006)Google Scholar. See also Viscusi, W. Kip and Zeckhauser, R.J., ‘Recollection Bias and the Combat of Terrorism’, 34 Journal of Legal Studies (2005) p. 27 CrossRefGoogle Scholar.

32 See also Scheinin, M. and Sorell, T., Surveille Deliverable D4.10, Synthesis report from WP4, merging the ethics and law analysis and discussing their outcomes, 7 April 2015, at p. 8-9, <surveille.eui.eu/wp-content/uploads/sites/19/2015/04/D4.10-Synthesis-report-from-WP4.pdf>>Google Scholar, visited 22 June 2016.

33 See Sarmiento, D., Schrems, ’What, Delvigne and Celaj tell us about the state of fundamental rights in the EU’, Verfassungsblog, 16 October 2015, <verfassungsblog.de/what-schrems-delvigne-and-celaj-tell-us-about-the-state-of-fundamental-rights-in-the-eu/>>Google Scholar, visited 22 June 2016.

34 See Alexy, supra n. 10, p. 193-194. See also Klatt, M and Meister, M, The Constitutional Structure of Proportionality (Oxford 2012) p. 67-68 CrossRefGoogle Scholar.

35 See Scheinin, M., Report by the Special Rapporteur on the Promotion and Protection Human Rights and Fundamental Freedoms while Countering Terrorism, A/HRC/13/37, para. 17 (28 December 2009)Google Scholar.