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5 Ambitions of the EU in Promoting the Rule of Law: How to Ensure Effective Privacy and Data Protection on the Internet Under the Rule of Law

5 Ambitions of the EU in Promoting the Rule of Law: How to Ensure Effective Privacy and Data Protection on the Internet Under the Rule of Law

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2  Privacy and Data Protection as Values of the EU That Matter, Also…



substantive notions of justice.53 In the EU context, a ‘thicker’ approach is usually

taken, thus reflecting a broad and substantive understanding of the rule of law,54

although it is also argued that Article 2 TEU reflects a ‘thin understanding’ by distinguishing the rule of law from other core values of the European Union, such as

democracy and fundamental rights.55

Other commentators underline two core elements, namely the establishment of

order in a society through law, on the one hand, and the control of power, on the

other hand. These are different aims, which are not necessarily convergent.56

Individuals may require the government to act in order to ensure that private actors

obey the law, and more generally that the state addresses threats, whereas under the

rule of law they are also protected against acts of governments themselves. If applied

to privacy and data protection: governments set the rules in order to ensure that the

private sector respects these rights, whereas at the same time individuals need protection against governments.

In addition, the separation of powers and the independence of the judiciary are

considered elements of the rule of law.57 In Assanidze v Georgia58 the European

Court of Human Rights set a standard precluding the legislature from interfering

with the administration of justice to influence the judicial determination of a dispute, from calling a ruling into question and from preventing its execution. This

case law may have relevance in relation to the independence of data protection

authorities.59

These different interpretations are mentioned in order to illustrate that the rule of

law is a core value for the European Union, as well as for the Member States, but

that there is no consensus as to what this value precisely comprises. In the context

of this book, we follow what Von Bogdandy and Ioannidis see as the essence of the

rule of law. According to them, the rule of law “requires as a minimum that the law

actually rules”.60 Public authorities must act in accordance with the law and ensure

that private actors observe the law.

53



 L. Pech, “Rule of law as a guiding principle of the European Union’s external action”, Centre for

the Law of EU External Relations (CLEER), T.M.C. Asser Institute, mainly footnote 8 of Chap. 1;

Brian Tamanaha, A Concise Guide to the Rule of Law, (St. John’s University School of Law,

2007).

54

 L. Pech, “Rule of law as a guiding principle of the European Union’s external action”, Centre for

the Law of EU External Relations (CLEER), T.M.C. Asser Institute, at 8. This also follows from

the case law mentioned in this paragraph.

55

 Armin von Bogdandy, Michael Ioannidis, “Systemic deficiency in the rule of law: What it is,

what has been done, what can be done”, CMLR 51: 59–96, at 62–63.

56

 Geranne Lautenbach, The Concept of the Rule of Law and the European Court of Human Rights,

Oxford University Press, 2013, Chapter. 2.

57

 Geranne Lautenbach, The Concept of the Rule of Law and the European Court of Human Rights,

Oxford University Press, 2013, at 159–172.

58

 Assanidze v Georgia, Application No 71503/01, 8 April 2004, at 129–130. See Chap.7 of this

book.

59

 See mainly Chaps. 7 and 8 of this book.

60

 Armin von Bogdandy, Michael Ioannidis, “Systemic deficiency in the rule of law: What it is,

what has been done, what can be done”, CMLR 51: 59–96, at 63.



2.5  Ambitions of the EU in Promoting the Rule of Law: How to Ensure Effective…



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2.5.2  The Rule of Law and Its Relation to Fundamental Rights

There is abundant literature on the rule of law and its relation to fundamental rights.

This does not imply that consensus exists on the nature of this relationship.61

However, it is beyond doubt that the need for respect of the rule of law has implications for the protection of fundamental rights, as stated in the preamble of the

Universal Declaration of Human Rights: “Whereas it is essential, if man is not to be

compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law”.62 The case law of the

Court of Justice also underlines this relationship. The Court ruled in UPA that “The

European Community is, however, a community based on the rule of law in which

its institutions are subject to judicial review of the compatibility of their acts with

the Treaty and with the general principles of law which include fundamental

rights.”63

The relationship between the rule of law and fundamental rights contains various

elements. Firstly, respect for the rule of law requires, in general terms, the effectiveness of protection of fundamental rights, while, secondly, legality has to be ensured.

Article 52(1) Charter reflects this, insofar as it requires restrictions on the exercising

of fundamental rights to be prescribed by a law. This requirement of Article 52(1) is

similar to provisions of the European Convention on Human Rights. Legality plays

an important role in the case law of the European Court of Human Rights and is

developed into quality standards of accessibility and foreseeability.64



2.5.3  Effective Legal Protection for Everyone

The rule of law implies that individuals are entitled to effective judicial protection

of the rights they derive from the EU legal order, as underlined in the case law of the

Court of Justice.65 In this sense, the rule of law is also reflected in the fundamental



61



 Geranne Lautenbach, The Concept of the Rule of Law and the European Court of Human Rights,

Oxford University Press, 2013, at 54.

62

 Available on: http://www.un.org/en/universal-declaration-human-rights/index.html.

63

 Case C-50/00P, Unión de Pequeños Agricultores v Council of the European Union,

EU:C:2002:462, at 38. The ruling builds on Case 294/83, Les Verts v European Parliament,

EU:C:1986:166.

64

 Geranne Lautenbach, The Concept of the Rule of Law and the European Court of Human Rights,

Oxford University Press, 2013, Chapter 3, and in particular the analysis in 4.7.

65

 Case C-50/00P, Unión de Pequos Agricultores v Council of the European Union,

EU:C:2002:462, at 39 and other cases cited in previous footnotes. Although it would have been

logical to discuss effective judicial protection under the heading of ‘fundamental rights’, this book

followed the case law in this by considering this subject under the rule of law.



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2  Privacy and Data Protection as Values of the EU That Matter, Also…



right of Article 47 Charter (which in turn is based on Article 6 ECHR).66 This fundamental right to effective legal protection also includes the provision of legal aid

to those who lack sufficient resources, insofar as such aid is necessary to ensure

effective access to justice.67

Effective legal protection should be given to everyone, including those adhering

to the philosophy of terror. The Court of Justice ruled in Kadi and Al Barakaat that

also persons to whom restrictive measures – such as the freezing of their financial

assets – are addressed have a right to be informed of the grounds on which these

measures are based, in order to be able to defend their rights in the best possible

conditions.68

However, this does not mean that restrictions on such people are not possible if

required for reasons of national security. As Advocate General Bot articulated in

ZZ,69 “In a democratic society, it is imperative to allow the very people who are

fighting the safeguards provided by the rule of law to benefit from those same safeguards in order to ensure the absolute primacy of democratic values, but this cannot

result in a kind of suicide of democracy itself.”



2.5.4  T

 he Rule of Law Has a Close Link with the Right

to Data Protection

Effective judicial protection under the rule of law has a close link with the right to

data protection, as specified under Article 8(2) Charter and in Directive 95/46 on

data protection.70 To illustrate this link, Article 8(2) Charter includes the right of the

data subject to have access to data that have been collected concerning him or her,71

whereas Articles 10 and 11 of Directive 95/46 provide that information must be

given to the data subject (the ‘right to information’).



66



 See also: Sacha Prechal, “The Court of Justice and effective judicial protection: what has the

Charter changed?”, in: The Court of Justice and Effective Judicial Protection: What Has the

Charter Changed?”, in: Christophe Paulussen, Tamara Takács, Vesna Lazic, and Ben Van Rompuy

(eds), Fundamental Rights in International and European Law – Public and Private Law

Perspectives, T.M.C. Asser Press/Springer, 143–160.

67

 This addition stems from the case law of the ECtHR. See: Explanations relating to the Charter of

Fundamental Rights, OJ (2007) 303/17, Explanation on Article 47.

68

 With restrictions, obviously. Joined Cases C-402/05P and 415/05P, Kadi and Al Barakaat,

EU:C:2008:461, at 336–337. On the relationship with data protection, see also: H. Hijmans and

A. Scirocco, “Shortcomings in EU data protection in the Third and the Second Pillars. Can the

Lisbon Treaty be expected to help?”, CMLR 46 (2009), Issue 4, at 1485–1525.

69

 Case C-300/11, ZZ, EU:C:2013:363, Opinion AG, at 43.

70

 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 L 281/31.

71

 The right of access provided in Article 8 Charter is elaborated in Article 12 of Directive 95/46.



2.5  Ambitions of the EU in Promoting the Rule of Law: How to Ensure Effective…



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The Court of Justice interpreted the right to effective judicial protection in ZZ, a

case on secret evidence and due process rights, to include the requirement that “the

parties to a case must have the right to examine all the documents or observations

submitted to the court for the purpose of influencing its decision, and to comment

on them”.72 Parties in a criminal case must always be informed of the essence of the

grounds of a decision taken against them.73 In Kadi and Al Barakaat, as mentioned

before, the Court took the same line in relation to persons to whom restrictive measures are addressed in the context of the fight against terrorism.74

Although these rulings of the Court were based on the right to effective judicial

protection, similar arguments could be based on the rights of data subjects under

data protection law. This explains the involvement of the European Data Protection

Supervisor in the assessment of restrictive measures75; in other words, effective

redress under the rule of law relates not only to the protection of fundamental rights

in general, but is also reflected in the rights of the data subject under EU data protection law.

In Schrems, the Court does make an explicit link between the rights protected

under data protection law and the fundamental right to effective legal protection. It

ruled that the essence of the fundamental right to effective judicial protection, as

enshrined in Article 47 Charter, is not respected if an individual cannot “pursue

legal remedies in order to have access to personal data relating to him, or to obtain

the rectification or erasure of such data.”76

Since the effective redress, or lack of it, in an internet environment is a main

theme in privacy and data protection, the subject of redress under the rule of law

returns in various parts of this book. A specific and recurring issue in the negotiations with the United States, for instance, is that, under the US Privacy Act, non-US

residents do not have access to US courts, even where EU citizens’ personal data are

transferred to the US.77 This does not comply with the rule of law, as understood in

the context of EU law, as confirmed by the Court of Justice in Schrems.78

 Case C-300/11, ZZ, EU:C:2013:363, at 55, and the case law mentioned there.

 For more detail, see: Nik de Boer’s case note “Secret evidence and due process rights under EU

law: ZZ”, CMLR 51: 1235–1262.

74

 Joined Cases C-402/05P and 415/05P, Kadi and Al Barakaat, EU:C:2008:461, at 336–337.

75

 Opinion of the European Data Protection Supervisor of 28 July 2009 on the proposal for a

Council Regulation amending Regulation (EC) No 881/2002 imposing certain specific restrictive

measures directed against certain persons and entities associated with Usama bin Laden, the

Al-Qaida network and the Taliban, OJ (2009), C 276/1. See also: H. Hijmans and A. Scirocco,

“Shortcomings in EU data protection in the Third and the Second Pillars. Can the Lisbon Treaty be

expected to help?”, CMLR, 46 (2009), Issue 4, pp. 1485–1525, at 1497–1498.

76

 Case C-362/14, Schrems, EU:C:2015:650, at 95.

77

 Unlike the Freedom of Information Act, the US Privacy Act covers only US citizens and permanent residents. Thus, only a citizen or permanent resident can sue under the US Privacy Act; see:

https://epic.org/privacy/1974act/. The problem is recognised on the US side, leading to the Judicial

Redress Act of 2015, 130 STAT. 282 PUBLIC LAW 114–126—FEB. 24, 2016. See also Chap. 6

and 9  of this book.

78

 Case C-362/14, Schrems, EU:C:2015:650, at 90 and 95.

72

73



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2  Privacy and Data Protection as Values of the EU That Matter, Also…



2.6  A

 mbitions of the EU in Promoting Fundamental Rights:

Understanding the Context of Privacy and Data

Protection and the Internet Under EU Law

This section explains a few specific elements of fundamental rights protection so as

to enable an understanding of privacy and data protection on the internet in a

European Union based on values. These are elements that outline some basic features of fundamental rights protection by focusing on specific dimensions of the

internet. Section 2.7 is dedicated to a subject that gains a new dimension on the

internet: fundamental rights protection in horizontal relationships vis-à-vis private

parties, particularly with regard to privacy and data protection. Since the protection

of fundamental rights in the Union is to a large extent the result of the case law of

the Court of Justice and, indirectly, of the European Court of Human Rights, Sects.

2.6 and 2.7 are closely connected to the – more elaborate – substance of Chap. 5 on

the role of the Court of Justice under Article 16 TFEU.



2.6.1  T

 he Broad Applicability of Fundamental Rights:

Application in All Situations

As the strategic guidelines adopted by the European Council in June 2014 under

Article 68 TFEU confirm, full respect of fundamental rights is key in EU policies.

More particularly, the guidelines state that “[A]ll the dimensions of a Europe that

protects its citizens and offers effective rights to people inside and outside the Union

are interlinked”.79 The Court of Justice took the same view – although formulated in

a different way – in Åkerberg Fransson by stating that “situations cannot exist

which are covered [..] by European Union law without those fundamental rights

being applicable. The applicability of European Union law entails applicability of

the fundamental rights guaranteed by the Charter.”80

The scope of application ratione personae of fundamental rights protection

under the Charter is also broad. Many provisions in the Charter protect “everyone”,

thus confirming the universal nature of the protection of the rights included in these

provisions, amongst which Articles 7 and 8 Charter. However, some rights of the

Charter have a more limited personal scope in that they are restricted, for example,

to EU citizens.81



79



 The guidelines can be found in the Conclusions of the European Council of 26/27 June 2014,

EUCO 79/14, available on: http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/

ec/143478.pdf.

80

 Case C-617/10, Åkerberg Fransson, EU:C:2013:105, at 21.

81

 See Title V of the Charter.



2.6  Ambitions of the EU in Promoting Fundamental Rights: Understanding…



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The Court of Justice confirmed in Kadi and Al Barakaat82 the applicability of the

fundamental rights to all situations by ruling that “[T]he obligations imposed by an

international agreement cannot have the effect of prejudicing the constitutional

principles of the EC Treaty, which include the principle that all Community acts

must respect fundamental rights”. Neither this ruling nor this statement is fully

uncontroversial83; both, however, reflect the current state of EU law and confirm the

external effect of EU fundamental rights.

This case law is in line with Article 21 TEU, which expresses the universality and

indivisibility of human rights and fundamental freedoms in relation to external

action of the European Union. Under Article 3(5) TEU, European values are not

confined to the territory of the Union: “In its relations with the wider world, the

Union shall uphold and promote its values and interests and contribute to the protection of its citizens.” Article 21 TEU elaborates: “The Union’s action on the international scene shall be guided by the principles which have inspired its own creation,

development and enlargement”.84 Article 21(3) TEU then clarifies that these principles should not only guide the Union’s external action, but also the external

aspects of all its policies. The European Council states in its famous Laeken

Declaration on the future of Europe (2001)85 that the Union seeks to set globalisation within a moral framework.

Although fundamental rights are applicable to all situations within the scope of

EU law, this broad applicability does not extend the competence of the Union.86

Instead, the broad applicability is a consequence of the broad objectives and activities of the Union, which are a source of interpretation for the Court of Justice.87

Most fundamental rights, including the rights to privacy and data protection, are

not absolute rights. Article 52(1) Charter specifies that the exercising of rights may,

under certain conditions, be limited. The limitation must be provided for by law,

while the essence of the rights must be respected and the limitation must be proportional. A proportionality test is at the core of the Court’s review of limitations of

fundamental rights and takes various factors into account. The Explanations to the

Charter specify that the wording of Article 52(1) Charter was taken from the case

 Joined Cases C-402/05P and 415/05P, Kadi and Al Barakaat, EU:C:2008:461, at 285.

 E.g., the contributions of De Búrca and Halberstam in: Gráinne de Búrca and J.H.H. Weiler

(eds), The Worlds of European Constitutionalism (Contemporary European Politics), (Cambridge

University Press, 2012).

84

 This is also specified in Article 21(2) TEU, which – as far as relevant here – reads: “The Union

shall define and pursue common policies and actions, and shall work for a high degree of cooperation in all fields of international relations, in order to: (a) safeguard its values, fundamental interests, security, independence and integrity; (b) consolidate and support democracy, the rule of law,

human rights and the principles of international law (…).”

85

 European Council, Presidency conclusions – Laeken, 14 and 15 December 2001, incl. Annex I,

Laeken Declaration on the future of the European Union.

86

 Koen Lenaerts and Piet van Nuffel, European Union Law (third edition), Sweet & Maxwell,

2010, at 111. On EU competence, see Chap. 4 of this book.

87

 Case 270/80, Polydor, EU:C:1982:43, at 16, on “interpretation in the light of the Community’s

objectives and activities as defined by Articles 2 and 3 of the EEC Treaty”.

82

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