The Strict Necessity Test on Data Protection by the CJEU: A Proportionality Test to Face the Challenges at the Beginning of a New Digital Era in the Midst of Security Concerns
AbstractThrough the judgments Digital Rights Ireland and Tele2 Sverige, the CJEU emphasised the power of the CFR (in particular arts 7, 8, 52) through the fundamental right of data protection and general principles of law such as the principle of proportionality and legal certainty. Article 52 CFR represents the essence of justification. In the spirit of article 52(3) and (4) CFR it becomes evident that the CJEU, the ECtHR and the German Constitutional Court go in the same direction. The CJEU was brave enough to deliver a scathing verdict on data retention. More strongly than the German CC, the CJEU safeguards data protection. Hence, the decisions of the CJEU were described as milestone decisions and the CJEU as a Court of fundamental rights. On the other hand, the CJEU focused all its power on proportionality expressed through the element of strict necessity. It is astonishing that the Court does not use the existing methodology on proportionality to strengthen legal discipline and confidence. Although proportionality may be assessed differently in single legal systems and cultures, the broad constitutionalisation and application of proportionality in jurisdiction proves the power of this general principle of law. The exploration of this principle is rather challenging, but most beneficial for the future application of primary law
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