Fundamental Rights and Legal Wrongs: The Two Sides of the Same EU Coin

Chalmers, Damian; Trotter, Sarah

doi:10.1111/eulj.12168

Cited by 24 publications

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“…While EU Charter rights were "less attentive to the singularity, vulnerability and potential of human existence," they were more attuned to the complexities of modern market excesses "and the stresses and demands posed for individuals by these market processes." 41 The real test for the EU Charter right to data protection will be to see whether it could disrupt exploitative business models and practices. The alternative was that data protection becomes part of the problem-a legitimizing framework for exploitative processing practices.…”

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confidence: 99%

Delivering Data Protection: The Next Chapter

Lynskey¹

2020

German Law Journal

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The right to data protection set out in Article 8 of the EU Charter of Fundamental Rights had played a pioneering role in the development of EU fundamental rights jurisprudence. Schecke and Eifert became the first to deal a fatal blow to specific legislative provisions that were deemed incompatible with the Charter requirements. 2 Digital Rights Ireland led to the annulment of an entire legislative instrument on the same basis. 3 Moreover, in Schrems, the Court elaborated on the essence of the related right to respect for private life, indicating that it was this level of fundamental rights protection that served as the benchmark to assess the adequacy of the data protection offered by third countries. 4 Writing in an extra-curial capacity, Koen Lenaerts, President of the Court of Justice of the EU, considered this to be another first. In Schrems, the CJEU declared for the first time that an EU measure was invalid on the ground that it did not respect the essence of two fundamental rights-for example, the right to respect private life and the right to effective judicial protection. 5 This role for the Charter in the metamorphosis of EU data protection law from niche regulatory framework to lodestar in the EU's fundamental rights acquis stood in stark contrast to the role that the Charter had played in lending life to other rights. Chalmers and Trotter suggested, with reference to the sovereign debt crisis, that the transformative effects of the Charter were overstated. Their claim was that the Charter situated, and protected, individuals within the European political economy while excluding those outside this sphere-for instance, the economically inactive. 6 In this way, it failed to offer protection in situations of great need, such as when individuals were isolated and vulnerable. From a comparative perspective, it was unsurprising therefore that data protection had been likened to the US First Amendment, 7 the jewel in the crown of the EU's Bill of Rights, with its expansion deemed "unstoppable." 8 *Associate Professor of Law, LSE; Visiting Professor, College of Europe Bruges.

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confidence: 99%