EU: The CJEU Steps In Regarding the Harmonization of Data Protection

Category: Nachrichten
By: M. Schröder - 2B Advice GmbH - the privacy benchmark

In its ruling of 24.11.2011, the European Court of Justice clearly states that Member States have much less flexibility when implementing Directive 95/46/EC than has been frequently assumed. Specifically, it dealt with the introduction of additional requirements for legally processing data under the Spanish data protection law. The CJEU ruled that additional requirements beyond the Directive may not be imposed.

The case dealt with the compliance of the Spanish law, which makes data processing for legitimate interests legal only when the data originates from public sources, with Article 7(f) of the Data Protection Directive. According to the statements by the CJEU, Article 7 contains a conclusive list of lawful uses and requirements for legality. The Spanish law unduly added an obstacle to legality with the additional requirement "from sources accessible to the public".

This hinders free movement of data within Europe. The lawmaker's right to interpret, as granted by the Directive, does not apply in this case because it only can take effect if there is a degree of flexibility present. This is not the case under the clearly specific regulation of Art. 7 of the Directive. At best, it is possible for lawmakers to provide guidelines for balancing interests when implementing Art. 7(f).

Furthermore, the CJEU determined that Art. 7 of the Directive is specific enough that it can take direct effect in the Member States.

A debate will now begin among Member States as to whether certain national standards are to be viewed as illegal additional obstacles or, whether they are meant solely as guidelines for the balancing of interests.

The question of how the free movement of data can be made possible when guidelines for balancing interests in the Member States lead to completely different results certainly needs to be posed. It is also debatable, whether a directive may be so specifically interpreted that there is no more leeway for balancing interests.

 

Further information:

 

eur-lex.europa.eu/LexUriServ/LexUriServ.do

eur-lex.europa.eu/LexUriServ/LexUriServ.do

 

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