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The New Eu Data Protection Regime: Setting Global Standards for the Right to Personal Data Protection

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The New Eu Data Protection Regime: Setting Global Standards for the Right to Personal Data Protection 2 PROTECTION REGIME PROTECTION THE NEW EU DATA THE NEW EU DATA PROTECTION REGIME: SETTING GLOBAL STANDARDS FOR THE RIGHT TO PERSONAL DATA PROTECTION THE XXIX FIDE CONGRESS IN THE HAGUE VOL. 2 2020 CONGRESS PUBLICATIONS Jorrit J. Rijpma (Ed.) 2 The proceedings of the XXIX FIDE Congress Rijpma J. Jorrit XXIX FIDE CONGRESS REGIME PROTECTION in The Hague in 2020 are published in four volumes. This book (Vol. 2) contains the reports of the General Rapporteur (Orla Lynskey), the Institutional Rapporteurs (Herke Kranenborg and Anna Buchta) and the National Rapporteurs (Ed.) on Topic 2: The New EU Data Protection Regime: Setting Global Standards for the Right to Personal Data Protection. ISBN 978-94-6236-129-4 9 789462 361294 The New EU Data Protection Regime The New EU Data Protection Regime Setting Global Standards for the Right to Personal Data Protection Le nouveau cadre reglementaire de l’UE en matiere de protection des donnees L’enonciation de normes mondiales pour le droit a la protection des donnees personnelles Das neue EU Datenschutzregime Setzen globaler Standards für das individuelle Recht auf Datenschutz The XXIX Congress in The Hague, 2020 Congress Publications Vol. 2 Editor: Jorrit J. Rijpma General Rapporteur: Orla Lynskey Institutional Rapporteurs: Anna Buchta & Herke Kranenborg Published, sold and distributed by Eleven International Publishing P.O. Box 85576 2508 CG The Hague The Netherlands Tel.: +31 70 33 070 33 Fax: +31 70 33 070 30 e-mail: [email protected] www.elevenpub.com Sold and distributed in USA and Canada Independent Publishers Group 814 N. Franklin Street Chicago, IL 60610 USA Order Placement: (800) 888-4741 Fax: (312) 337-5985 [email protected] www.ipgbook.com Eleven International Publishing is an imprint of Boom uitgevers Den Haag. ISBN 978-94-6236-129-4 © 2020 The Authors | Eleven International Publishing This publication is protected by international copyright law. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior permission of the publisher. Printed in the Netherlands Table of Contents Introduction from the FIDE 2020 Board ix Introduction from the Editor xiii Introduction du Comité Directeur du Congrès de la FIDE 2020 xv Introduction de l’Éditeur xix Begrüßung durch das Organisationskomitee von FIDE 2020 xxi Vorwort des Bearbeiter xxv Questionnaire Topic 2: The New EU Data Protection Regime 1 Questionnaire Thème 2: Le Nouveau Régime de Protection des Données de l’UE 7 Fragebogen Thema 2: Das Neue EU-Datenschutzregime 15 General Report Topic 2: The New EU Data Protection Regime 23 Orla Lynskey Institutional Report Topic 2: The New EU Data Protection Regime 79 Anna Buchta and Herke Kranenborg National Reports Austria 109 Hans Kristoferitsch Belgium 135 Anneleen Van de Meulebroucke, Dries Van Briel and Justine De Meersman Bulgaria 155 Ana Velkova v Table of Contents Croatia 179 Antonija Ivančan Cyprus 197 Stéphanie Laulhé Shaelou and Katerina Kalaitzaki Czech Republic 217 Ondřej Serdula and Vojtěch Bartoš Denmark 235 Søren Sandfeld Jakobsen Estonia 247 Merike Kaev Finland 259 Anu Talus and Tobias Bräutigam France 273 Céline Castets-Renard, Mathieu Combet and Olivia Tambou Germany 295 Dieter Kugelmann Greece 323 Anna Pouliou, Virginia Tzortzi and Despina Vezakidou Hungary 343 Tamás Bendik, Dániel Eszteri, Attila Kiss, Melinda Kovács, Ágnes Majsa and Katalin Siklósi-Somogyi Ireland 365 Kate Colleary and Emily Gibson Italy 385 Francesco Rossi Dal Pozzo Luxembourg 403 Tine A. Larsen, Clémentine Boulanger and Annelies Vandendriessche Malta 425 Mireille M. Caruana vi Table of Contents The Netherlands 445 Dominique Hagenauw and Hielke Hijmans Norway 467 Milos Novovic and Martin Hennig Poland 477 Agnieszka Grzelak and Mirosław Wróblewski Portugal 497 Filipa Calvão and Clara Guerra Romania 513 Augustin Fuerea and Roxana-Mariana Popescu Slovakia 525 Lilla Garayova Slovenia 543 Nina Pekolj and Marjan Antončič Spain 561 Antonio Segura Serrano and Julián Valero Torrijos Sweden 581 Pernilla Norman Switzerland 597 Jacques Beglinger The United Kingdom 619 Leonard W.N. Hawkes List of FIDE 2020 Partners vii Introduction from the FIDE 2020 Board It was in a small pub in Tallinn in 2012, late at night, that a group of Dutch jurists visiting the bi-annual Congress of the International Federation for European Law (FIDE) in Estonia, brought up the bold idea of bringing FIDE to The Netherlands. Eight years later, the Netherlands Association of European Law (NVER), has the honour of welcoming the members of FIDE in The Hague at the XXIX FIDE Congress. Or rather: welcoming them back to The Hague. Twice before did the FIDE convene in the Dutch seat of government: in 1963 and in 1984. Much like the European Union itself, The Hague has changed since 1984. It has grown, its skyline has been transformed and its position as an international city of peace and justice consolidated, also with the presence of Europol and Eurojust. The impact of FIDE as an organisation, and of its members, on the development of European law has been well-documented.1 From the outset FIDE formed a unique transnational network bringing together key actors who stood at the basis of the ‘new legal order’,2 who shaped European law as a discipline in its own right, and who legitimised the Court’s “‘constitutional’ understanding of European Law” at its early conferences in The Hague (1963) and Paris (1965).3 Whereas in the early 1960s European law had yet to achieve its full potential, participants of the 1984 Congress may have considered primacy and direct effect as largely settled, as the European Communities were to embark on Jacques Delors’ internal market project. At the same time, they would not have imagined the exponential growth in services and the exciting, yet also disruptive, effects of the internet and new technology. In 2020, after years of crises that have shaken the European Union to its very foundations, it seems once again in need of FIDE to act as “the wheeling flank of the army of European jurists”,4 to understand, explain and defend a Union that is based on the rule of law and, notably, on 1 J. Laffranque, ‘FIDE – Uniting Great Minds of European Law: 50 Years of the International Federation for European Law’, Juridica International XVIII, 2011, pp. 173-181. See for example also S. Lee Mudge & A. Vauchez, ‘Building Europe on a Weak Field: Law, Economics, and Scholarly Avatars in Transnational Politics’ AJS Vol. 118, No. 2, 2012, pp. 449-492. The Spanish FIDE 2010 organisation did a fantastic job in making much of the FIDE archive accessible to its members: www.fide-europe.org/members-login/, visited 1 February 2020. 2 Judgment of 5 February 1963, Case 26/62, NV Algemene Transport-en Expeditie Onderneming van Gend & Loos v Netherlands Inland Revenue Administration, ECLI:EU:C:1963:1. 3 M. Rasmussen, Establishing a Constitutional Practice of European Law: The History of the Legal Service of The European Executive, 1952-65, Contemporary European History Vol. 21, No. 3, 2012, p. 395. 4 A. de Vreese, Droit communautaire et droit national, 14 Cahiers de Bruges, Vol. 14, No. 399, 1965, quoted in A. Vauchez, Brokering Europe: Euro-Lawyers and the Making of a Transnational Polity, Cambridge, Cambridge University Press, 2015, p. 137. ix Introduction from the FIDE 2020 Board common values the members of FIDE hold dear. In our modern society, European cooperation is not just an option; it is a necessity. In keeping with good practice and tradition, the XXIX FIDE Congress addresses three main topics for which distinguished General Rapporteurs have been invited to draft a questionnaire on the current relevant legal issues on a European and national level. Rapporteurs from the FIDE Members Associations and prominent experts from the EU institutions have responded with country and institutional reports. Based on this input, the General Rapporteurs compiled a General Report on each topic. You will find all the reports in the FIDE XXIX Congress Publications While in the early days the Commission’s Legal Service would ask FIDE to report on certain questions,5 the current selection of the three main topics is the result of lively discussions. The organisers of the FIDE XXIX Congress took advantage of valuable contributions from the FIDE Steering Committee, by bringing together the Netherlands academic community and benefiting greatly from the input from practitioners, as well as FIDE members, colleagues and friends in the European Institutions and Member States. The three topics under discussion at the FIDE 2020 Congress revisit some of the classic tenets of EU law, whilst bringing to the table new questions that are triggered by the needs of modern society. Our aim has been to appeal to both specialists and general EU lawyers. The topics that were selected for the FIDE 2020 Congress are the following: 1. National Courts and the Enforcement of EU Law: The Pivotal Role of National Courts in the EU Legal Order 2. The New EU Data Protection Regime: Setting Global Standards for the Right to Personal Data Protection 3. EU Competition Law and the Digital Economy: Protecting Free and Fair Competition in an Age of Technological (R)evolution The XXIX FIDE Congress Publications are the result of the work of a great variety of EU jurists who, in true European spirit, joined efforts to provide the General Rapporteurs with answers to their questionnaires in various national reports. The General Rapporteurs have compared, evaluated and brought together the insights from the national reports in their General Reports. Together with the Institutional Reports written by experts from the Institutions, and a special report on the EFTA Court, the Congress Publications thus present the state of the art on the three topics of the XXIX FIDE Congress.
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