European Union: The European Courts Of Justice And Data Protection

Last Updated: 17 August 2016
Article by Nicolas Deschamps

The 6th of October 2015, the European Union Court of Justice (EUCJ) has published the Schrems case of justice. With that decision, the Court considers that the European Union legislation does not offer an efficient protection for the personal data exported outside of the European Union territory.

That decision makes illegal numerous data transfers, especially from the EU to the United-States. Indeed, the Court pushed questions about interferences of fundamental rights to the persons whose personal data are exported.

The Working Party 29 (WP29), an institutional group of the European Union specialized in the personal data protection, decided to assess the consequences of the Schrems decision on the transfer of data. The WP29 then analysed the jurisprudence of the EUCJ related to the Charter of Fundamental Rights, as well as the decision of the European Court of Human Rights (ECHR), related to the European Convention of Human Rights.

This work can be summarized by the following sentence: a justified interference to the human rights, in a democratic society. The result of that study has been entitled by the WP29 "The four essential European guarantees" (the Guarantees).

We will in a first part focus on the interference to fundamental rights, and then on the Four Guarantees in a second part.

The interferences to fundamental rights

The Charter of Fundamental Rights establishes fundamental rights linked to private life. In the Schrems decision, the EUCJ considers that the EU legislation should both impose clear and precise rules governing the field of application of a measure, and a minimum protection. The purpose is that individuals possess enough guarantees to protect their personal data of any illegal abuse.

The European Court of Human Rights also proposed a protection of fundamental rights related to personal data. In the Zakharov decision, the 5th of December 2015, the Court considered the interferences to the right of a private life to be only justified if they are "respecting the law, with a legitimate and necessary purpose in a democratic society".

The ECHR as well as the Charter both include a test of necessity and proportionality. The limitations are accepted if they are necessary and objectively recognized of general interest by the EU, or because they protect rights and liberties. The two courts of justice consider that every limitation or interference to the fundamental rights related to private life or data protection can only be justified if "strictly necessary in a democratic society". The ECHR specifies that States have a substantial margin of appreciation in the choice of necessary measures to accomplish a legitimate goal of national protection. The collect of personal data for example can be a legitimate goal followed by a State.

In theory, the operations of data recovery or surveillance will all constitute an interference, especially when the data related to private life are recovered by a public authority.

However, the EUCJ and the ECHR both pointed out in a clear way that without their jurisprudential rules, the national authorities can freely decide for each individual case if the data collect will constitute or not the violation of a fundamental right.

The European Essential Guarantees

The WP29 analysed the jurisprudential decisions in order to define the European Essential Guarantees. The Guarantees shall be incorporated to ensure that there would be not interference related to the protection of data or private life in the Member States of the European Union.

Four guarantees have been developed:

  • the process must be based on clear, precise, and accessible rules
  • the measures shall be necessary and proportional
  • an independent surveillance group in the Member States shall exist
  • efficient remedies shall be available for each individual

The WP29 underlined that Guarantees are funded on fundamental rights, regardless the nationality of the persons. Besides, this group frequently asked to the Member States to adapt the national laws on the jurisprudences of EUCJ and ECHR.

The different decisions recently judged by the two European courts of justice in charge of the protection of fundamental rights are given in a context where protection of data and private life takes importance.

Indeed, the protection of private life and personal data by governments has always been a hot topic. For example, very recently the company Apple made an opposition against the FBI in the United States. The FBI wished to obtain data contained in a smartphone sold by Apple, on the purpose to fight terrorism. The company refused the FBI demands, which leaded to arguments between human rights protectors, and supporters of the legitimate intervention of government institutions for general interests.

The debate, which on a first sight seems only politically turned, in fact also affects the world of business. The GAFA companies (Google, Amazon, Facebook, Apple) are regularly accused by the European authorities to violate private life rights. This context may have leaded to the Schrems decision, since the data exported outside the EU territory weren't protected enough once arrived on the US territory, where the GAFA is located.

The development of the jurisprudence of the courts and their power to impose decisions on Member-States shall lead to national legislations framing the use of personal data and the protection of private life by the governments and authorities.

However, we can question the rapidity of government to vote laws. Indeed, the States are already struggling to follow and frame the exponential evolution of the numeric fields.

As the constitutionalist Guy Carcassonne said "The problem of democracy is that it is slow to act".

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Nicolas Deschamps
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.