The Essence of Privacy, and Varying Degrees of Intrusion

von Martin Scheinin

This brief comment will address the 6 October 2015 CJEU Grand Chamber ruling in Max Schrems, asking what it tells us about the status of two fundamental rights in the EU legal order, namely the right to the respect for private life (privacy) and the right to the protection of personal data (EU Charter of Fundamental Rights, Articles 7 and 8, respectively). The ruling must be read together with the 8 April 2014 ruling in Digital Rights Ireland where Articles 7 and 8 were discussed side by side.

Although the Max Schrems ruling contains many references to personal data, it does not really discuss the right to the protection of personal data as a distinct fundamental right. Article 8 of the Charter is mentioned in the dispositive part of the ruling but not for instance in what I would call the main finding by the Court which refers only to Article 7:

In particular, legislation permitting the public authorities to have access on a generalised basis to the content of electronic communications must be regarded as compromising the essence of the fundamental right to respect for private life, as guaranteed by Article 7 of the Charter…

The outcome of the case – declaring Commission’s Safe Harbor Decision 2000/52 invalid – flows from this finding of a breach of the essence of the right to privacy when we are dealing with indiscriminate blanket access to data. In Digital Rights Ireland the CJEU had already indicated (paras. 39-40) that blanket access to ‘content’ would trigger the application of the essence clause in Article 52 (1.1) of the Charter, while surveillance, even indiscriminate mass surveillance, based on even complex use of various categories of metadata amounted to a “particularly serious interference” (Digital Rights Ireland, para. 65) with fundamental rights but did not trigger the application of the essence clause ...

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