EU Law I: Union Competences

Dr Thomas Horsley
Liverpool Law School

Fundamental Rights

p.12

Summary
Fundamental

rights also bind the Union institutions in the exercise of their

competences
No

formal recognition in EEC Treaty (1957) to legally binding EU Charter

(2009)
Judicial

origins of EU rights protection (esp. Handelsgesellschaft)

Subsequent

emergence of political initiatives, culminating in introduction of EU

Charter on Fundamental Rights (2000; 2009)

So what does the EU Charter protect?

p.13
Divided into 6 titles

(N.B. pre-Lisbon labelled Chapters)

Title 1: Dignity (e.g. right to life, prohibition of torture)

Title 2: Freedoms (e.g. freedom of expression, family/private life)
Title 3: Equality (e.g. non-discrimination)
Title 4: Solidarity (e.g. collective bargaining, healthcare, environment)
Title 5: Citizens Rights (e.g. voting/election rights, free movement)
Title 6: Justice (e.g. rights to fair trial, proportionality of penalties)

How significant is the Charter?

p.14

On the one hand

The worlds most modern and comprehensive statement of
human rights and fundamental freedoms:
Inclusion of economic and social rights alongside traditional civil
and political rights
Captures contemporary rights constellations (e.g. Art 3(2)(d))

On the other hand

Certain rights heavily qualified with reference to Member
State law (e.g. Art 9 on the right to marry)
More generally: horizontal provisions (= general provisions)

EU Charter Rights: Derogations

p.14
Art 52(1): Charter rights are subject to derogation
However
- Derogations must be provided for by law and respect the
essence of those rights and freedoms.
- Must be necessary and genuinely meet objectives of general
interest recognised by the Union or the need to protect the rights and
freedoms of others.
-*ECHR definitions as floor re. scope of rights (Art 52(3)
and Art 53 EUCFR)

EU CHARTER: LEGAL STATUS

p.15

Legally binding since Lisbon (Dec. 2009)

For judicial confirmation post-Lisbon, see e.g. Schecke and Eifert [2010]
ECR I-11063
CJ:
In accordance with Article 6(1) TEU, the European Union recognises
the rights, freedoms and principles set out in the Charter of
Fundamental Rights of the European Union
In those circumstances, the validity of [the contested EU Regulations]
must be assessed in the light of the provisions of the Charter
(paras 44-45).

CASE STUDY: DATA PROTECTION

pp15/16

Two recent highlights on the legal impact of the EU Charter on Union lawmaking in the particular field of data protection:
Re. validity of EU law:
Digital Rights Ireland (C-293/12 and C-594/12)
Q: What Impact has the EU Charter had on the Unions Legislatures
ambitions?
Re. interpretation of EU law:
Google Spain SL v. AEPF and Gonzalez (C-131/12)
Q: Is there now a right to be forgotten protected under EU law?

CASE STUDY: DATA PROTECTION

pp15/16

Digital Rights Ireland (C-293/12 and C-594/12)

Applicants

contesting validity of Directive 2006/24 EC on the retention of

personal data by public communication providers for the purposes of the
prevention of serious crime and acts of terrorism
Directive

2006/24 EC required Member States to introduce legislation obliging

telecommunications operators to retain specific items of data generated and
processed by them and, further, to make that data accessible to competent
national authorities
Applicants

argued (successfully) that Directive 2006/24 EC infringed Articles 7, 8

and 11 EUCFR on respect for privacy, the protection of personal data and the
freedom of expression respectively

CASE STUDY: DATA PROTECTION

pp15/16

Digital Rights Ireland (C-293/12 and C-594/12)

CJ:

Directive 2006/24 EC constituted a serious interference with Charter rights

The

stored data could be used to track the habits of everyday life, permanent or
temporary places of residence, daily or other movements, the activities carried out,
the social relationship of those persons and the social environments frequented by
them (at para. 27)
The

possibility for derogation (Art 52(1) CFR) recognised, but rejected on

proportionality grounds:
Directive 2006/24 EC entail [ed] a wide-ranging and particularly serious interference with
[Arts 7 and 8 EUCFR], without such an interference being precisely circumscribed by
provisions to ensure that it is actually limited to what is strictly necessary (at para. 65)

CASE STUDY: DATA PROTECTION

p.16

**Google Spain SL v. AEPF and Gonzalez (C-131/12)

Q: Does EU law require internet search engine providers to block links to thirdparty webpages that are accessible through their search engines where the pages
contain inadequate or irrelevant information about individuals?
Mr Gonzlez, a Spanish national, wanted Google to remove search engine links to
two news items published in a Spanish newspaper that announced his name in
connection with historic (and now settled) proceedings for the recovery of social
security debts
Did EU law / EU Charter establish such a right to be forgotten? If so, on what
basis and under what conditions?

CASE STUDY: DATA PROTECTION

p.16

**Google Spain SL v. AEPF and Gonzalez (C-131/12)

Directive 95/46 EC on the protection of individuals with regard to the processing of personal
data and the free movement of such data
CRITICAL QUESTION: Did the scope of Directive 95/46 EC enacted prior to the
internet revolution and, strikingly, not amended since its adoption in 1995 extend to
include the activities of search engine providers? IF YES, DIR + CHARTER APPLIES
Answer depended, inter alia, on whether Google (as search engine provider) qualified as a
data controller under Directive 95/46 EC
For Advocate General Jskinen the answer was no: simply supplying through the
provision of intermediary search facilities the location of information published by third
parties elsewhere does not constitute data control. Factual influence was needed for control

CASE STUDY: DATA PROTECTION

p.16

**Google Spain SL v. AEPF and Gonzalez (C-131/12)

Grand Chamber ruled otherwise to find Google a data controller:
Search engines [play] a decisive role in the overall dissemination of data in that [they
render] the latter accessible to any internet user making a search on the basis of the
data subjects name, including to internet users who would otherwise not have found the
web page on which those data are published (para. 36)
=> As such, Google was bound by Directive 95/46 EC + EU CHARTER
The Court then set out Googles legal obligations under Directive 95/46 EC interpreted in light
of the EU Charter (Arts 7 and 8 CFR protection of privacy and personal data)

CASE STUDY: DATA PROTECTION

p.16

**Google Spain SL v. AEPF and Gonzalez (C-131/12)

Interpreted in light of Arts 7 and 8 EUCFR, Directive 95/46 EC guaranteed individuals the
right to request internet search providers to delete certain links to webpages that appear in
the list of results following a search under their name
The links to be deleted cover webpages that contain information that is inadequate,
irrelevant or no longer relevant, or excessive in relation to the purposes of the processing at
issue.
Any scope for derogation under Art 52(1) EUCFR?
Specific public interest exception, but narrowly construed (see para. 97)

CASE STUDY: DATA PROTECTION

p.16

Google Spain has significant implications for the regulation of online privacy in EU law
The decision effectively imposes on Google (and, by extension, other market operators) a
legal responsibility to balance, in individual instances, the data subjects rights to privacy and
the protection of personal data with the public interest in the freedom of expression
Should such decisions be left to market operators?
Was the Court right to update Directive 95/46 EC itself or should it have left this to the
Union legislature?
Googles response: the Courts ruling requires Google to make difficult judgments about an
individuals right to be forgotten and the publics right to know
See now: https://support.google.com/legal/contact/lr_eudpa?product=websearch

CASE STUDY: DATA PROTECTION

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