The Essence of the Fundamental Rights to Privacy and to the Protection of Personal Data: a Concept Paper

Any limitation on the exercise of the fundamental rights to privacy and to the protection of personal data must respect the essence of those rights. Despite the importance of this requirement, limited guidance can be found on how it should be applied in practice. The EDPS will publish a Concept Paper that will offer perspectives on the role that the essence of the rights to the protection of privacy and of personal data could play in EU law.

What is the relevance of the concept of the ‘essence’? In accordance with the Charter of Fundamental Rights of the European Union a measure limiting the fundamental rights (to privacy and to the protection of personal data) must respect the essence of those rights. If the essence of the fundamental right is affected, the measure is unlawful and there is no need to proceed with the assessment of its compatibility with the other requirements set in Article 52(1) of the Charter (notably, necessity and proportionality).

The case law of the Court of Justice of the European Union (‘CJEU’) on the essence of fundamental rights serves as a reminder of what Europe’s core values are. This case law makes clear there are limitations to fundamental rights that are unacceptable, for instance, because the fundamental right at stake is absolute (e.g. human dignity), or because it would be rendered meaningless.

On 8 November 2023, the EDPS held a Seminar on the Essence of the fundamental rights to privacy and to the protection of personal data. During the Seminar, a Study by Prof. Dr. Gloria González Fuster (VUB) on this topic was presented and discussed. Building on the study and the discussion that took place, the EDPS will publish a Concept Paper on the Essence of the fundamental rights to privacy and to the protection of personal data.

The Paper aims to clarify the concept of essence by taking stock of relevant jurisprudence and recent legislative advisory opinions of the EDPS. The Paper will also offer preliminary indications and possible perspectives on the role that (the essence of) the rights to the protection of privacy and of personal data can and should play having regard to recent developments in technology and society. The main objective of this initiative is to foster public debate, by offering additional inspiration and elements for further reflection on the topic.