Study on the Essence of the fundamental rights to privacy and to the protection of personal data

This background paper explores the requirement of respecting the ‘essence’ of the rights to respect for private life and of right to the protection of personal data whenever these rights are limited under European Union (EU) law.

The requirement is explicitly established in Article 52(1) of the Charter of Fundamental Rights of the EU, and currently also mentioned in EU secondary law. With the aim of facilitating further reflection and discussion on the requirement’s application notably when limitations of the right to personal data protection are at stake, the paper reviews current knowledge on the subject and illustrates the significant limitations of existing knowledge.

Taking stock of the relevant literature and case law, mainly of the Court of Justice of the EU and of the European Court of Human Rights (ECHR), it also identifies a few key issues deserving further analysis and discussion. The paper concludes by suggesting it can be useful to focus not on speculating about what would be the essence of the rights at stake, but rather on when must a limitation of a right be regarded as a breach of the essence requirement.