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Data Protection Principles in the Case Law of the ECJ: Looking for the Right Qualification

Tijmen Wisman

Data protection principles in Directive 95/46 form the substantive core of data protection law. They determine the scope of the right in general and specifically how the subjective rights that follow from it can be applied. In the case law of the ECJ these principles are used in a multitude of contexts ranging from transparency of salaries appointed to public officials to the results shown by search engines. In practice, however, it shows that data processors tend to consider them as open norms that are pliable to meet the goals they set. This way they minimize the constraints that follow from data protection principles. Several authors have noticed that these principles in practice function as guidelines. This qualification of data protection principles seems to be at odds with the case law of the European courts in which there is an increased recognition of the importance of these principles culminating in the Court acknowledging their direct effect. The interpretation of the principles that aim to constrain the processing of this data is essential in a world where personal data is worth money. Especially since the right to data protection hinges on the protection of the fundamental rights of individuals and the interests of businesses in the processing of personal data. The aim of this article is to address the question how these principles should be qualified and applied in practice in the light of the case law of the ECJ.

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