Proposed “Data Protection Regulation” compliant with Charta of Fundamental Rights?


Recent leaks of Council documents (e.g. the December 19th version here) on the proposed EU data protection regulation are quite alarming if one is generally in favor of keeping at least the current level of protection under Directive 95/46/EC – the “red line” of the Commission and many Member States.

This “red line” is frequently overstepped in the current documents, but quite frankly (given intense lobbying) everyone that has not seen this coming was very likely naïve.

Now there may be a large number of political views on the subject matter, but in practice they are not really relevant once an Regulation is passed. No court will be too impressed by the fact that the promises of Viviane Reding or national ministers were shredded in a Brussels back room.

However, an analysis of the current state of play raises a whole new question: Are these proposals not only overstepping a political “red line”, but also the legal “red line” under primary law? A question that is highly relevant in practice.

The thoughts below are of course just a first analysis, not a result of intense, deep research and up for debate, but it seems reasonable to raise these important questions in subsequent blog posts over the next weeks.

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I. The Basics: Article 8 CFR

II. Minimization and Proportionality under Article 52(1)

III. Purpose Based Processing, Further Processing and Article 8(2)



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