Introduction Flashcards
(25 cards)
QUADRO GIURIDICO INTERNAZIONALE
- Fonti
- United Nations
- Council of Europe
- European Union
- National Law
QUADRO GIURIDICO INTERNAZIONALE
- UN
United Nations
Universal declaration of human rights (UDHR), 10 December 1948 (Art. 12)
The International Covenant on Civil and Political Rights, (ICCPR) (Art. 17), 16 December 1966
QUADRO GIURIDICO INTERNAZIONALE
- UN (Art.12 UDHR)
Article 12 of the UDHR (Universal declaration of human rights) on respect for private and family
1) No one shall be subjected to arbitrary interference with:
- his privacy,
- family,
- home
- or correspondence,
2) nor to attacks upon
- his honour
- and reputation.
3) Everyone has the right to the protection of the law against such interference or attacks.”
First time an international instrument laid down an individual’s right to protection of their private sphere against intrusion from others, especially from the state.
QUADRO GIURIDICO INTERNAZIONALE
- UN (Art.17 ICCPR)
Art. 17 ICCPR (The International Covenant on Civil and Political Rights)
“1.
a) No one shall be subjected to arbitrary or unlawful interference with:
- his privacy,
- family,
- home or
- correspondence,
3) nor to unlawful attacks on:
- his honour and
- reputation.
- Everyone has the right to the protection of the law against such interference or attacks”.
QUADRO GIURIDICO INTERNAZIONALE
- Council of Europe
European convention on human rights (ECHR), 4 November 1950 (Art. 8)
Convention 108+ («Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data»)
QUADRO GIURIDICO INTERNAZIONALE
- Council of Europe (Art. 8 ECHR)
Council of Europe
Art. 8 ECHR (European convention on human rights )
“ a) Everyone has the right to respect for:
- his or her private and family life,
- home and
- correspondence.
b) Interference with this right by a public authority is prohibited, except where the interference is in accordance with:
- the law,
- pursues important and legitimate public interests and
- is necessary in a democratic society”.
QUADRO GIURIDICO INTERNAZIONALE
- THE EUROPEAN COURT OF HUMAN RIGHTS (ECtHR)
THE EUROPEAN COURT OF HUMAN RIGHTS (ECtHR)
a) The ECtHR ensures that states observe their obligations under the Convention by considering complaints:
- from individuals,
- groups of individuals,
- NGOs or
- legal persons
alleging violations of the convention.
b) The ECtHR can also examine inter-state cases brought by one or more CoE member states against another member state.
QUADRO GIURIDICO INTERNAZIONALE
- Counci of Europe (CONVENTION 108)
Convention 108
a) In 1981, a Convention for the protection of individuals with regard to automatic processing of personal data
b) was, and still remains, the only legally binding international instrument in the data protection field.
c) applies to all data processing carried out by both the private and public sectors,
including data processing by the judiciary and
law enforcement authorities.
QUADRO GIURIDICO INTERNAZIONALE
- EU Data Protection Law
- Art. 8 Charter of Fundamental Rights of the European Union
- Art. 16 Treaty on the functioning of the European Union
- Regulation (EU) 2016/679 on protecting individuals with regard to the processing of personal data and on the free movement of those data, known as the GDPR (General Data Protection Regulation)
- Directive (EU) 2016/680 on protecting individuals when personal data are used by law enforcement authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties.
- Regulation (EU) 2018/1725 down rules for protecting individuals with regard to the processing of personal data by the EU institutions, bodies, offices and agencies and on the free movement of those data.
- Directive 2002/58/EC on the processing of personal data and the protection of privacy in the electronic communications sector.
QUADRO GIURIDICO INTERNAZIONALE
- EU Data Protection Law (Art. 8)
Art. 8 Charter of Fundamental Rights of the European Union
«Right to the protection of personal data»
a) Everyone has the right to the protection of personal data concerning him or her.
b) Such data must be processed fairly:
- for specified purposes and
- on the basis of the consent of the person concerned or
- some other legitimate basis laid down by law.
c) Everyone has the right of access to data which has been collected concerning him or her, and the right to have it rectified.
d) Compliance with these rules shall be subject to control by an independent authority.
The sources of EU law
The sources of EU law are divided into primary (or original) and secondary sources.
Principle of the primacy [principe de primauté] of European Union law
Where a conflict arises between an aspect of :
- EU law and
- EU Member State (national law),
→ EU law will prevail.
The sources of EU law
At the primary level
→ Treaties
- Treaty on European Union [TEU] and
- Treaty on the Functioning of the European Union [TFEU])
→ Charter of Fundamental Rights of the European Union (CFR)
→ General principles of the EU drawn by the ECJ
(e.g. the principle of the primacy [principe de primauté] )
The sources of EU law
At the primary level
- Treaty on European Union [TEU]
Art. 6 TEU
The Union recognises:
- the rights,
- freedoms and
- principles
set out in the Charter of Fundamental Rights of the European Union
of 7 December 2000,
as adapted at Strasbourg on 12 December 2007,
→ which shall have the same legal value as the Treaties.
The sources of EU law
At the secondary level
Pursuant to article 288 (1)
The secondary source of EU law are:
- regulations,
- directives,
- decision.
The sources of EU law
At the secondary level (Regulations)
Article 288 (2) TFUE provides that
“a regulation shall have
- general application.
- It shall be binding in its entirety and
- directly applicable
in all Member States”.
The sources of EU law
At the secondary level (Directives)
According to article 288 (3) TFUE,
- A directive shall be binding, upon each Member State to which it is addressed,
- The national authorities choose forms and methods
The sources of EU law
At the secondary level (Decision)
The Decision also
→ include
- recommendations and
- opinions,
→ not legally binding
- cannot be considered sources of law.
GDPR – General Data Protection Regulation
The GDPR replaced a Directive.
The Regulation is
- immediately and
- uniformly applicable
in all Member States
- entered into force on 24/5/2016 applies since 25/05/2018
GDPR – General Data Protection Regulation
- General purpose
(Recital 7)
General purpose:
a) a strong and more coherent data protection framework in the Union,
b) backed by strong enforcement,
- creating the trust that will allow the digital economy to develop across the internal market.
c) Natural persons should have control of their own personal data.
d) Legal and practical certainty for:
- natural persons,
- economic operators and
- public authorities
should be enhanced»
GDPR – General Data Protection Regulation
- The structure of the GDPR
173 Recitals
11 Chapters
Chapter I – General provisions
Chapter II – Principles
Chapter III – Rights of the data subject
Chapter IV – Controller and Processor
Chapter V – Transfers of personal data to third countries or international organisations
Chapter VI – Independent supervisory authorities
Chapter VII – Cooperation and consistency
Chapter VIII – Remedies, liability and penalties
Chapter IX – Provisions relating to specific processing situations
Chapter X – Delegated acts and implementing acts
Chapter XI – Final provisions
99 Articles
GDPR – General Data Protection Regulation
The twofold purpose of the GDPR (Art. 1)
The protection of natural persons in relation to the processing of personal data
→ Art. 1 para 2:
This Regulation protects :
- fundamental rights and
- freedoms of natural persons
- right to the protection of personal data.)
Facilitating the free flow of personal data within the internal market
→ Art. 1par. 3:
The free movement of personal data within the Union shall be
- neither restricted
- nor prohibited
for reasons connected with the protection of natural persons with regard to the processing of personal data.)
Right to privacy vs. right to data protection
Right to privacy/right to respect for private life –> a “negative right’”
‘right to be left alone’ -
≠
Right to data protection –-> an “active right”
- people’s control on data concerning him or her;
- requirements that make the data processing activitities lawful;
- multiple rights that data subjects can exercise
Further evolution of European Data law
EUROPEAN DATA STRATEGY (personal and non-personal data), Communication from the Commission Feb. 19, 2020
→ Towards a single European data space/single data market + sectoral spaces in relevant areas (e.g., European Health Data Space)
→ Strengthening the Control, Sharing, Reuse of personal and non-personal data
→ Free movement of data must serve social welfare and economic development
→ Increased data in circulation for better decisions in both private and public spheres
