kowalik
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HORIZONTAL DIRECT EFFECT
OF THE RIGHT TO PRIVACY IN
THE CHARTER OF
FUNDAMENTAL RIGHTSKRYSTYNA KOWALIK-BACZYK
Il costo della privacy, Bocconi University
11.05.2015
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Privacy spring
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Background
Snowden scandal
Privacy understood as freedom from spying by the State or third parties
New wave of CJEU jurisprudence with referencesto the EU Charter
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4 questions
1. Relationship between the Charter
and the EU secondary law on privacy
2. Direct effect of the Charter in national
proceedings
3. Horizontal direct effect of the Charter
4. Implications for private companies
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Relationship between the Charter and the EU
secondary law on privacy
Influence on interpretation: anyprovision must be interpreted in light of fundamental rights (para 68 Google Spain)
If both
Can the Charter be used instead?
Pending case C-362/14 Schrems
If
inconformityor
invalidation
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Direct effect of the Charter
For Member States art. 51 of the Charter:
all cases where the national law falls into the
field of application of European Union law
CJEU invites the national courts to apply the Charter:
C-555/07 Seda Kckkdevici (later: Test Achats, Franson, Melloni)
Opinion 2/13, para 169: autonomous system of fundamental rights protections
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National remnants of the Data
Retention Directive?
Digital Rights Ireland directive was invalidated due to infringements of the Charter
C-198/13 Julian Hernndez
the sole fact that a national measure touches
upon the issues that are covered by the EU
competence, is not enough in itself to stimulate
the application of the Charter. The national
measure has to implement the EU measures
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Horizontal direct effect of the
Charter
The same legal value as the Treaties ability to provide binding norms in horizontal disputes
C-144/04 Mangold CJEU requiresthe national courts to dissapplynational provisions
But only if the provision in question is a RIGHT, not a PRINCIPLE C-176/12 AMS
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Direct effect of provisions on
privacy?
Division between public and private law blurred
Google Spain the right to be forgotten stemsfrom art. 7 and 8 of the Charter? no mention of this right in the directive 95/46
97. As the data subject may, in the light of hisfundamental rights under Articles 7 and 8 of theCharter, request that the information in questionno longer be made available to the generalpublic by its inclusion in such a list of results
Explanations to the Charter art. 7 and 8 arerights (not principles)
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Implications for private
companies
Provides for applicableright usedagainstundertakings
Charter
Dissaplicationof somenationalsolutions if not in conformity
National law
Tort of misuse of privateinformation claims for damagesNational
remedies
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Conclusions
If there is a link with EU Law, it can be invoked
in national proceedings concerning the
privacy issues
Dissaplication of an act of national legislator
Striking down the rules limiting access to
damages art. 7 and 8 together with art. 47
Class actions for damages
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kkowalik@inp.pan.pl
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