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

Privacy spring

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

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

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

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

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

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

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)

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

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

kkowalik@inp.pan.pl