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9 Distinctions Between Fundamental Rights on the Internet: Towards a Simple Taxonomy

9 Distinctions Between Fundamental Rights on the Internet: Towards a Simple Taxonomy

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218



5  Understanding and Assessing the Contribution of the CJEU to the Mandate Under…



companies on the internet; fourth, conflicts of jurisdiction are a phenomenon that is

inherent to the internet and should be addressed.

Against this background, it should be recalled that the Court of Justice of the

European Union makes a certain difference in the standard of review for various

fundamental rights, although this depends on a number of factors. Arguably, if all

fundamental rights in the Charter need equal protection, the level of privacy and

data protection will be weakened in a complex internet environment. The internet

challenges the protection as such, but also requires these rights to be balanced with

other fundamental rights because, as observed, fundamental rights increasingly

coincide. Moreover, a different standard of review is justified by the fact that not all

fundamental rights are equally challenged on the internet. The obvious example is

that a free internet promotes free speech, but challenges privacy and data protection.

Furthermore, the duty to protect fundamental rights on the internet requires

resources. A difference in the standards of protection allows an efficient use of

resources, with a focus on the rights which are most important in a democratic

society.

Finally, in an internet environment fundamental rights have an inherent extraterritorial effect which may collide with legitimate jurisdictional claims of third countries or international organisations. Extraterritorial application may be legitimate to

defend essential values of a society, but not in relation to a wide range of rights and

principles. Choices may be needed, also for reasons of legitimacy. The legitimacy

of external EU action is also determined by – possibly conflicting – legitimate

claims of third countries and international organisations.206



5.9.1  Towards a Simple Taxonomy

In Digital Rights Ireland and Seitlinger, the Court of Justice of the European Union

qualified the nature of the rights to privacy and data protection as being an important

factor necessitating a strict review by the Court that, in this case, ultimately led to

the invalidity of Directive 2006/24 on data retention.207 In the case law on the freedom to choose an occupation and the right to engage in work, the freedom to conduct a business and the right to property,208 the Court’s review was not equally strict.

This difference in approach indicates that under the Court’s case law distinctions are

made between various categories of fundamental rights. The emphasis on human

dignity in relation to fundamental rights, for example in the Explanations relating to

the Charter of Fundamental Rights,209 is a further indication.



206



 As explained in Chap. 1.

 At 47 and 48 of the ruling.

208

 Articles 15–17 Charter, Cases C-283/11, Sky Österreich, EU:C:2013:28, C-314/12, UPC

Telekabel Wien, EU:C:2014:192, and C-390/12, Pfleger, EU:C:2014:281.

209

 OJ (2007) 303/17.

207



5.9  Distinctions Between Fundamental Rights on the Internet: Towards a Simple…



219



We also recall Schmidberger,210 a case on the freedoms of expression and assembly, predating the Lisbon Treaty. According to the Court of Justice, the freedoms of

expression and assembly do not appear to be absolute but must be viewed in relation

to their social purpose, unlike other fundamental rights enshrined in the European

Convention on Human Rights, such as the right to life or the prohibition of torture

and inhuman or degrading treatment or punishment. On the basis of this reasoning,

the Court treats the freedoms of expression and assembly in the same way as the

fundamental freedoms of the EU Treaty which have an economic background, such

as in casu the free movement of goods.

Schmidberger is interesting for a number of reasons. In the first place, the ruling

identifies different categories of fundamental rights (absolute rights and rights that

may be restricted) and, in the second place, it seems to give the same value to civil

and political rights (freedoms of expression and assembly) and to social and economic rights (free movement). This position was made more explicit in an opinion

of Advocate General Trstenjak in Commission v Germany of April 2010 stating: “In

the case of a conflict between a fundamental right and a fundamental freedom, both

legal positions must be presumed to have equal status.”211 As said, Schmidberger

predates the Lisbon Treaty and the opinion was issued shortly after its entry into

force, so the approach may since have changed.

This book proposes a simple taxonomy of fundamental rights in four to six categories, which should be helpful for privacy and data protection in an internet environment for the four reasons mentioned above: the difference in the standard of

review, the balancing between rights, efficient use of resources and the extraterritorial application.

A first category of fundamental rights would be the “non-derogable”212 or absolute fundamental rights, within the meaning of Schmidberger, corresponding to the

rights included in Title I of the Charter, entitled dignity. They include the right to

human dignity, which is inviolable (Article 1 Charter)213 and which is of a general,

potentially far-reaching nature.214 However, as Dupré explains, it is a foundational

value, but a notoriously difficult legal concept, and it is seen as a prerequisite for all

rights.215

 Case C-112/00, Schmidberger, EU:C:2003:333, at 76–80. Quote taken from para. 80.

 Opinion AG Trstenjak, C-271/08, Commission v Germany, EU:C:2010:183, at 81. He also

argued against the hierarchy of rights. The CJEU followed the opinion, albeit without these statements of principle.

212

 Term used in Peers and Prechal in: “The EU Charter of Fundamental Rights, A Commentary,”

Edited by Steve Peers, Tamara Hervey, Jeff Kenner and Angela Ward, Hart Publishing, 2014, at

1462.

213

 Articles 2, 4 and 5 (life, protection against torture and slavery) do not seem to have specific

relevance in the context of this book. The right to physical and mental integrity has mainly relevance in medical setting.

214

 Cathérine Dupré on Article 1, The EU Charter of Fundamental Rights, A Commentary, Edited

by Steve Peers, Tamara Hervey, Jeff Kenner and Angela Ward, Hart Publishing, 2014, pp. 3–24.

215

 Cathérine Dupré on Article 1, The EU Charter of Fundamental Rights, A Commentary, Edited

by Steve Peers, Tamara Hervey, Jeff Kenner and Angela Ward, Hart Publishing, 2014, e.g. at 01.25

and 01.26.

210

211



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5  Understanding and Assessing the Contribution of the CJEU to the Mandate Under…



A second category of fundamental rights is composed of rights which are particularly relevant for human dignity, but not qualified as non-derogable. A good

example of a case where a huge impact on dignity was recognised, but where the

right at issue could not be qualified as non-derogable, is a ruling on homosexual

asylum seekers. The Court of Justice acknowledged that the sexual orientation is a

characteristic fundamental to a person’s identity, but that his fundamental right is

not per se breached by a restricting measure, because a derogation is possible.216

The distinguishing factor of this second category would be the impact on the human

dignity. At first sight, these second category rights are the fundamental rights

included in the first generation fundamental rights instruments,217 i.e. the civil and

political rights that are protected under the European Convention on Human Rights

and the International Covenant on Civil and Political Rights. Privacy (and data

protection)218 as well as the freedom of expression and information definitely belong

to this category.

A third category comprises the social, cultural and economic rights. This category includes the rights laid down in Articles 15–17 Charter (the freedom to choose

an occupation and the right to engage in work, the freedom to conduct a business

and the right to property).219 These rights normally – but not necessarily – require

(legislative) action from governments. Three nuances must be made. First, social,

cultural and economic rights are characterised as peripheral rights220 and their nature

as fundamental rights may be questioned,221 but they are not necessarily less valuable in society than civil and political rights, as was explained above. Second, the

difference between civil and political rights, on the one hand, and social and economic rights, on the other hand, has become less relevant, due to the wide interpretation of civil and political rights.222 Third, different views are possible as to the

qualification of the right to property, which has a historical link to civil and political

rights. This will be explained in Sect. 5.15.

Three further categories are distinguished for systematic reasons. The distinctions between these three categories have no specific relevance for this book on

216



 Hence, the mere existence of legislation criminalising homosexual acts is not sufficient to constitute persecution (in a third country and thus to grant asylum under EU law), whereas risk of

imprisonment is sufficient; Joined Cases C-199 to C-201/12, Minister voor Immigratie en Asiel v

X (C-199/12) and Y (C-200/12) and Z v Minister voor Immigratie en Asiel (C-201/12).

217

 See J.H. Gerards, ‘Fundamental rights and other interests – should it really make a difference?’,

in: E. Brems (ed.), Conflicts between Fundamental Rights, Intersentia, Antwerp, 2008, at 659.

218

 Chapter 2 proposes to consider both fundamental rights as part of one system.

219

 The rights at stake in Cases C-283/11, Sky Österreich, EU:C:2013:28; C-314/12, UPC Telekabel

Wien, EU:C:2014:192 and C-390/12, Pfleger, EU:C:2014:281.

220

 J.H. Gerards, ‘Fundamental rights and other interests – should it really make a difference?’, in:

E. Brems (ed.), Conflicts between Fundamental Rights, Intersentia, Antwerp, 2008, pp. 655–690.

221

 N. Jääskinen, in “The EU Charter of Fundamental Rights, A Commentary,” Edited by Steve

Peers, Tamara Hervey, Jeff Kenner and Angela Ward, Hart Publishing, 2014, at 1703.

222

 J.H. Gerards, ‘Fundamental rights and other interests – should it really make a difference?’, in:

E. Brems (ed.), Conflicts between Fundamental Rights, Intersentia, Antwerp, 2008, at 659.



5.9  Distinctions Between Fundamental Rights on the Internet: Towards a Simple…



221



privacy and data protection on the internet. A fourth category of fundamental rights

that could be distinguished are the principles referred to in Articles 51 (1) and 52 (5)

Charter that cannot be directly invoked before a court, but require implementation.

A fifth category are the fundamental economic freedoms of the Treaties, relating to

the free movement of goods, services etc. Exceptions are only allowed for overriding requirements in the public interest and need to be duly justified.223 A sixth category is the undefined species of public and general interests, which could be any

interest recognised under the Treaties, or in any event the wide categories of interests meant in Article 52 (1) Charter.



5.9.2  T

 he Taxonomy Could Enable the CJEU to Elaborate Its

Case Law, Further Strengthening the Protection

of Individuals on the Internet

Before the entry into force of the Lisbon Treaty, it seemed that the European Court

of Justice valued the various rights more or less on an equal footing. The example

of Schmidberger showed a balancing between first generation fundamental rights

(freedom of expression and assembly) and a fundamental freedom under the Treaties

(free movement of goods) without expressing any difference in the importance of

these rights. The Court did not address this issue, whereas the referring Austrian

Court had asked whether the object of a public demonstration could be considered

of a higher order than the free movement of goods. Another example is Promusicae.224

In a case where the effective protection of copyright had to be ensured and had to be

balanced with the right to data protection, the Court ruled that a fair balance should

be struck between the various fundamental rights at stake without establishing an

order between these rights. Advocate General Kokott had proposed a different

approach, namely assessing the case as an exception to the right to private life under

Article 8 ECHR. She also qualified the protection of copyright as a fundamental

interest of society, though not as a fundamental right.225

After the entry into force of the Lisbon Treaty, the case law of the Court indicates226 that the nature of the right deserving protection does make a difference.

However, this case law is not fully clear, also because the nature of the right is not

 Under the vast case law, in accordance with the standard case C-120/78, Rewe-Zentral (“Cassis

de Dijon”), EU:C:1979:42.

224

 Case C-275/06, Promusicae, EU:C:2008:54.

225

 See in particular points 52 and 105 of her opinion.

226

 This does not necessarily mean that the CJEU is consistently applying a new approach. E.g., in

case C-314/12, UPC Telekabel Wien, EU:C:2014:192, at 47, the CJEU points at the necessity of

striking a balance between the right to conduct a business (Article 16 Charter), the right to property

(Article 17 Charter) and the freedom of information (Article 11 Charter) without any differentiation. However, the balancing test by the CJEU remained superficial. The case did not require a

more in-depth analysis.

223



222



5  Understanding and Assessing the Contribution of the CJEU to the Mandate Under…



the only factor determining the strictness of review. The taxonomy could enable the

Court to develop its case law, further strengthening the protection of individuals on

the internet.



5.10  T

 he CJEU Takes a Strict Approach on Privacy

and Data Protection, Particularly When Balancing

with Other Fundamental Rights, and with the Objective

of Security

Section 5.6 explained that the Court of Justice’s assessment of limitations to a fundamental right focuses on proportionality. The Charter has become the yardstick

and has a wide scope, but with limits. The test under the Charter is strict, depending

on a number of factors. The nature of the fundamental right is such a factor, as Sect.

5.7 specified. Section 5.8 proposed a taxonomy that could enable the Court to elaborate its case law. These are the starting points of the next sections, on balancing

privacy and data protection on the one hand with certain fundamental rights and the

public interest of security on the other hand.



5.10.1  The Strict Approach of the CJEU

The Court of Justice of the European Union takes a strict approach to privacy and

data protection, considering the changed reality in the information society and its

impact on privacy and data protection. Google Spain and Google Inc.227 addressed

the loss of control over personal data, in relation to the activities of a search engine

and Digital Rights Ireland and Seitlinger228 addressed the consequences of mass

surveillance.

These cases demonstrate that the Court of Justice is not only strict, but also specific in explaining privacy and data protection. Where the Court balances privacy

and data protection with other fundamental rights and public interests, it has a precise framework for scrutinising data protection, laid down in EU legislation. The

Court interprets Directive 95/46 in the light of the fundamental rights of privacy and

data protection.229 However, it does not have a similar framework in respect of other

fundamental rights and public interests, where the competences are exercised by the

Member States.



 Case C-131/12, Google Spain and Google Inc., EU:C:2014:317.

 Joined cases C-293/12 and C-594/12, Digital Rights Ireland (C-293/12) and Seitlinger

(C-594/12), EU:C:2014:238.

229

 As explained in Chap. 2, Sect. 2.13.

227

228



5.10  The CJEU Takes a Strict Approach on Privacy and Data Protection,…



223



Chapter 2 of this book explained that privacy is a concept that is interpreted

broadly, much wider than the original notion of the right to be left alone, and that it

has been extended to the relations with the outside world.230 Privacy is recognised as

being a prerequisite for the exercise of other fundamental rights such as the freedom

of speech.231 The connection of data protection with other fundamental rights follows from its definition in Council of Europe Convention 108232 and the various EU

instruments of data protection233 that refer to other fundamental rights and

freedoms.

Privacy and data protection are not absolute rights. Limitations and restrictions

are needed, because the European Union and its Member States also need to protect

other fundamental rights and public interests. Furthermore, the balancing with other

rights and interests is the core of the protection given by the Court of Justice. As

explained in Chap. 2, Article 8 Charter provides that personal data must be processed fairly. The Court specifies that data protection itself requires a balancing

act.234 The potential harm a limitation of the fundamental right would have for the

values a right aims to protect is relevant. Harm is a difficult concept, particularly in

relation to privacy and data protection,235 but could be a useful tool in an internet

environment where protection is becoming ever more complicated.

Where the Court of Justice balances privacy and data protection with other fundamental rights and public interests it seems to consider that some compensation for

the loss of control over personal data in an internet environment may be needed.

Hence, this case law of the Court gives a significant boost to internet privacy and

data protection. The case law reflects that these fundamental rights aim at preserving dignity and autonomy as conditions for a functioning democratic society, under

the rule of law, and that the respect of these rights is at risk in an information

society.



 Niemietz v Germany, ECtHR (1992), Application No. 13710/88.

 As Rodota states: “It allows individual beliefs and opinions to be freely made public.” In:

Reinventing data protection?, S. Gutwirth, et al. (eds), Springer, 2009, p.79.

232

 Article 1 of Convention for the Protection of Individuals with regard to Automatic Processing of

Personal Data, Strasbourg, 28 January 1981, ETS 108: “The purpose of this convention is to secure

[…] respect for his rights and fundamental freedoms, and in particular his right to privacy, with

regard to automatic processing of personal data relating to him (‘data protection’).”

233

 E.g., recital (2) of Directive 95/46.

234

 Case C-518/07, Commission v Germany, EU:C:2010:125, at 24.

235

 Harm and risk are at the heart of debates on internet privacy. E.g., Centre for Information Policy

Leadership, An Initial Issues Paper for Privacy Risk Framework and Risk-based Approach to

Privacy Project Workshop I, Paris, France, 20 March 2014. See also recital 75 of the GDPR providing examples of risks to individuals.

230

231



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