WORKSHOP • 18 APRIL 2018
by Laura Drechsler, Brussels Privacy Hub, LSTS, VUB
On 20 April 2018, the Brussels Privacy Hub organised a third edition in its Brussels Privacy Hub Meets the Author”- events series titled “In Search of the Concept of Essence of EU Fundamental Rights Through the Prism of Data Privacy”.
An interesting discussion took place on the essence of the fundamental rights of data protection and privacy and, more in general, the concept of the essence of fundamental rights in the Charter of EU Fundamental Rights (CFREU). The discussion was guided by the author of the forthcoming article in the European Constitutional Law Review “The concept of essence of fundamental rights in the EU legal order: Peeling the onion to its core”, Maja Brkan (University of Maastricht). Discussing with her were Christopher Docksey (Hon. Director General, EDPS) and Prof. Christopher Kuner (Brussels Privacy Hub). The debate was moderated by Dr Hielke Hijmans (Brussels Privacy Hub).
The debate opened with some introductory remarks and questions of Hijmans about the concept of “essence of fundamental rights”. He highlighted that the concept of “essence of fundamental rights” is a very abstract notion, distinguishing the inviolable core of a fundamental right from its rest, where limitations under more or less strict conditions are possible. He praised that Brkan tried to connect this notion of “essence of a fundamental right” with its application in practice , defining essence both in objective (what does the right mean for society as a whole) and subjective terms (the meaning of a fundamental right for a single right holder). However, he questioned, whether or not the “essence of fundamental rights” is a workable concept for the European Union (EU) fundamental rights order. He pointed out, that it would be worth to further analyse the link between the essence of a fundamental right and human dignity (a core notion of the EU Charter). More precise questions could be: do all EU fundamental rights have an essence? Is there a link between the concept of essence and human dignity? Would this lead to a hierarchy of fundamental rights?
The introductory remarks were followed by impressions on the article by Docksey, who started by praising the article as an excellent piece of scholarship. He then moved on to explain some background information on Article 52 (1) Charter of Fundamental Rights of the EU (CFREU), which introduced the concept of “essence” of fundamental rights and set out in a general manner the conditions for potential limitations, if those limitations in return do not violate the essence of a fundamental right.
As Docksey elaborated, this differs from approaches in other human rights instruments, such as the European Convention of Human Rights (ECHR), which includes limitations with each human right, where they are possible. According to Docksey, the drafters of the CFREU had two reasons for their different approach. Firstly, they did not want to risk diverging formulations of the limitations such as in the ECHR that would lead to speculation about their content. Secondly, as the CFREU also includes social rights, for which there was no precedence, unification of limitations seemed the most sound way forward. Docksey also elaborated on the origins of the essence concept, which was inspired by the German Grundgesetz of 1949.
Docksey furthermore highlighted the excellent metaphor of an onion Brkan used in her article to explain the concept of essence of a fundamental right. An interference touching only the outer layer of the onion, does not touch the essence, but the closer interferences get to the core of the onion, the more disproportionate they are, until at the core, the essence of the fundamental right is being violated. He also expressed his admiration for the definition Brkan finally gave to essence of a fundamental right, namely as “the untouchable core” or “inner circle” of fundamental right that cannot be restricted or interfered with.
This definition for Docksey showed that essence is an absolute and not a relative concept. That it is not an extreme expression of proportionality, and that there is no space for justifying arguments when talking about the essence of a fundamental right.
Docksey also raised two points on which he disagreed with Brkan. Firstly, in her Article Brkan establishes a test for assessing whether or not the essence of a fundamental right is violated, for which she uses the explanation that “essence is interfered, if the existence of a fundamental right is called into question, and if no overriding reasons exist”. The use of the term “calls into questions” was in Docksey’s opinion too ambiguous, as heavily disproportionate interferences might also call a fundamental right into question without touching upon the essence. The second element of this test he disagreed with, was the “lack of overriding reasons”. As a violation of essence cannot be justified, it seemed for Docksey confusing to mention “overriding reasons”, as there is no possibility to outbalance the essence of fundamental rights.
Finally, Docksey underlined that the Court of Justice of the European Union’s (CJEU) decision in Schrems as also pointed out by the author played a key role in analysing the concept of essence of a fundamental right as it mentions the essence of the right to privacy and the right to effective judicial protection. He disagreed with the author to the regard that she seemed to argue that only a limitation of the essence of judicial protection was actually present in Schrems, for privacy it was according to her analysis a disproportionate interference. For Docksey, the United States (US) system displayed a complete lack of protection for privacy, hence the essence of that right was violated as well.
A second round of critical remarks was offered by Christopher Kuner, who also praised the article and underlined its important academic contribution to the field. Kuner then explained that while Schrems, as the sole decision where the CJEU found a violation of the essence of fundamental rights, has great importance in the discussions about essence. He thought that an analysis of case-law where the CJEU did not find a violation of the essence would have been an interesting addition to the article.
Additionally, Kuner remarked, that Brkan was occasionally too generous with the CJEU, as many rulings on fundamental rights can be questioned, especially Digital Rights Ireland where the essence of data protection was confused with data security.
The criticism on the essence concept could be compared to critique on the principle of proportionality within EU law, as both tend to undermine the objectivity and predictability legal norms should have. A good example for that would have been Opinion 1/15, which was only published after finalisation of the article. For Kuner the CJEU failed to find a clear argumentation in Opinion 1/15, why the agreement did not touch upon the essence of the fundamental right to data protection, even though it heavily criticised many of its provisions with arguments seemingly going into the direction that the essence of data protection was at stake. It could be questioned, if the CJEU has a clear logic for analysing essence cases or whether its decisions come close to being arbitrary.
Finally, Kuner praised the multi-layered nature of the concept of essence, which is clearly displayed in the article by using the analogy of an onion. He mentioned that a few points, hidden in Schrems, could have been further discussed within this part of the article.
For example, Schrems stated that international transfer of personal data outside of the EU can only occur when the third country shows an “essentially equivalent level of protection”. The details of this standards are still largely unclear, the only known factor is that the level does not need to be identical. For Kuner, the essence of fundamental right could be related to this standard for international data transfers, in the sense that the essence is a narrower part of it. Another point for him was the concept of “core data protection principles”, as they are often referenced by the Article 29 Working Party in guidance documents. Also in that context, there is no clear definition what these principles are and who decides what they are. Again, there could be a potential link to the essence of a fundamental right that would require further analysis. Kuner proposed to also think about a core of data protection, that could be broader than the essence of data protection. .
As a last point for further reflection, Kuner mentioned the potential relationship between the essence of a fundamental right and ius cogens of public international law and human rights law, as referred to in Kadi, where the CJEU used similar terms in their description as in Schrems for essence.
The event concluded with some reactions by the author. Regarding whether “essential equivalence” for trans-border data transfers is related to the essence of a fundamental right, Maja Brkan remarked that equivalence is much broader than essence, as equivalence is about fundamental rights in general, of which essence is only a small part. Additionally, for equivalence secondary legislation and principles need to be considered, which are for Brkan typically outside the essence of a fundamental right.
Brkan also agreed with Docksey regarding the comments that essence is an absolutist concept and not as many propose an extreme form of proportionality. She explained that essence for her is to be separated from proportionality. Firstly, this is the result a textual interpretation of the CFREU, where proportionality and essence are dealt with in distinct paragraphs. Secondly, she pointed out that the CJEU in its case law on the substance of fundamental rights e.g. on EU citizenship, even before the Charter, clearly treated it as an issue separate from proportionality.
Brkan also reacted to the remarks that she was too lenient on the CJEU in her arguments and did not criticize its lack of clear logic in essence cases sufficiently.
She clarified, that for her the vagueness of the essence concept was rooted in the Digital Rights Ireland decision, where the CJEU side-stepped the question of essence by stating that only content data would harm the essence of privacy. For Brkan, the CJEU even admitted so, as in Tele 2 the CJEU took its decision partly back and concluded that even metadata, so non-content data, could be problematic and infringe the essence of privacy.
Finally, in Schrems the CJEU tried to build on Digital Rights Ireland, when trying to decide whether there was a breach of the essence of privacy. Brkan argued that indeed the CJEU then concluded wrongly, as, according to her, Schrems did not breach the essence of privacy; the test could be considered a disproportionate breach.
The reason why the CJEU might have chosen the essence variant, is according to Brkan, the fact that within a proportionality test it would have had to balance US security against EU data privacy; essence, so she argued, was used as a scapegoat to escape this balancing. Brkan also argued that similar reasoning might be behind the CJEU’s unclear stance on the differentiation between the fundamental right to privacy and the fundamental right to data protection, as this would open a Pandora’s box of discussions. For Brkan both are in any case overlapping, and it will be interesting whether the Court will be more clear on this in the future, as the General Data Protection Regulation (GDPR) has the fundamental right to data protection at its core, and does not really mention privacy.
Brkan also tried to clarify more her test for determining whether something is a breach of the essence of fundamental rights, which was criticised by Docksey for including overriding reasons, a reference back to proportionality. While Brkan could see how overriding reasons could be seen as bringing back proportionality, for her it was more meant as establishing that a case is outside proportionality considerations, so actually a confirmation that this is an essence case which cannot be subject to balancing.
Finally, Brkan raised some points on the connection of essence to human dignity, that was questioned by Hijmans in his opening statement. For Brkan, human dignity is a part of every fundamental right of the CFREU, but not always to the same degree. Hence, each fundamental right displays a different degree of connection to human dignity, with rights such as protection from torture, right to life or non-discrimination having a closer connection than rights such as good administration or the right to vote. She also highlights that Schrems also raised the concept of the rule of law, when finding the essence of the right to an effective remedy was breached. This for her could be taken as a clue that all fundamental values of the EU not only human dignity, as mentioned in Article 2 TEU, could play a role when determining essence of a fundamental right.
The presentations were followed by a debate with the audience on essence, especially the essence of the fundamental right to data protection. To view the whole debate, please consult our YouTube channel.
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