Dec 152010
 December 15, 2010  Posted by  Laws, Non-U.S.

Aidan O’Neill QC writes:

[…]These twin principles of freedom of information and of data protection are expressly recognised within the provisions of the Treaty on the Functioning of the European Union (“TFEU”).


Data protection and concerns with individual privacy

Article 16(1) TFEU (formerly Article 286 EC) proclaims that “everyone has the right to the protection of personal data concerning them”.   Article 16(2) TFEU provides an express Treaty basis for the adoption of EU legislation concerning the data processing on individuals, both by the EU and by the Member States when carrying out activities falling within the scope of EU law.   Such EU legislation shall be aimed at protection the individual’s interest in such “personal data” and regulate its free movement.   The due compliance with these rules shall be subject to the control of independent authorities.


Data protection

Article 7 the Charter parallels Article 8 ECHR in setting out the fundamental EU right to respect for private and family life, home and communications.   And as the Grand Chamber of the Court of Justice has noted:

“[T]he right to respect for private life with regard to the processing of personal data, recognised by Articles 7 and 8 of the Charter, concerns any information relating to an identified or identifiable individual (see, in particular, European Court of Human Rights, Amann v. Switzerland [GC], no. 27798/95, § 65, ECHR 2000‑II, and Rotaru v. Romania [GC], no. 28341/95, § 43, ECHR 2000‑V) and the limitations which may lawfully be imposed on the right to the protection of personal data correspond to those tolerated in relation to Article 8 of the Convention.” (Joined Cases C‑92/09 and C‑93/09Volker und Markus Schecke GbR v Land Hessen 9 November 2010 para 52)

In S and Marper v United Kingdom ((2009) 48 EHRR 50) the Grand Chamber of the European Court of Human Rights found that the protection of personal data was of fundamental importance to a person’s enjoyment of, respect for his, or her private and family life under Article 8 ECHR, particularly when such data was the subject of automatic processing and were being used for police purposes.


This is an edited extract from a forthcoming book “EU Law for UK Lawyers” by Aidan O’Neill QC, to be published by Hart in Spring 2011,  Aidan O’Neill QC is a Member of Matrix Chambers

Read the full excerpt on Inforrm’s Blog.

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