Privacy and Data Processing in the Jurisprudence of the Cjeu: An Area of Judicial Activism?

In an era of omnipotence of personal data processing, the right to respect for private life as enshrined in Articles 7 EUCFR and 9 ECHR has been increasingly under pressure. In this framework, the CJEU has emerged as a primary guardian of privacy, as evidenced by landmark judgments such as Digital Rights Ireland, Google Spain and Schrems. This contribution examines the recent case law on personal data processing with the aim of addressing three main issues: Firstly, it is observed that the CJEU has repeatedly highlighted the centrality of privacy, whereby the newly recognised right to the protection of personal data is considered important in the light of the right to private life, rather than a fully-fledged fundamental right on its own merit. Secondly, it is pointed out that the CJEU has engaged in a dialogue with the EU legislature not only by condemning generalised surveillance practices, but also by giving specific guidelines as to how new legislations must be constructed. Thirdly, it is discussed whether the Court’s judgments should be viewed as a form of judicial activism, or as a legitimate way of delimiting State power based on concrete and reasonable legal considerations.