L’applicazione del Bill of Rights europeo tra bilanciamento asimmetrico e paradosso federale: il caso della privacy digitale

The European Bill of Rights between asymmetry and federal paradox. The case of digital privacy

Abstract

Since it entered into force in 2009, the European Charter of Fundamental Rights played an important role in shaping the European Union framework. In particular, it impacted the unique European federal structure imposing a centralizing effect and providing the grounds to confirm and steadily expand the scope of application of EU fundamental rights to the Member States. The European Court of Justice increasingly
referred to the Charter in order to interpret the EU law, directly enforcing the Charter’s provisions in its judgements. In doing so, the European judges empowered their role as human rights adjudicators, but they didn’t fully consider the federal paradox of their rulings. This paper will examine the impact of the Charter’s federalizing force within the field of digital privacy. First it will analyze the clash between the rights to privacy and data protection guaranteed in art. 7 and 8 of the Charter and the need to ensure national security expressively reserved by art. 4 TUE to the Member States. The paper will then analyze the Data Protection
Saga, claiming that in seeking to establish itself as the ultimate protector of fundamental rights in Europe, the Court of Justice has arguably neglected the importance of respect for other fundamental constitutional principles relating to the proper division of competences. Finally, the article will argue that especially if the Court of Justice want to address itself as the Constitutional court of Europe it has to take its role of federal jurisdiction seriously, balancing the protection of human rights with the federal division of powers between UE and the Member States.

Keywords: Privacy; European Charter of Fundamental Rights; Federalism; Data Protection.