Tuesday, November 03, 2009

Lisbon Treaty We Salute You

I almost thought I would never live to see the day but yes the Lisbon Treaty has cleared its final hurdle and will become European law possibly in December 2009.

It's all rather a damp squib for a UK privacy lawyer though. (Even one who is healthily sceptical that the Tories can get us out of this one, even when they do get in.) Pangloss's main interest was in wondering if the EU Charter's explicit addition of a right to protection of personal data as well as the well known right to respect for private life (cf Art 8, ECHR) might make a difference and if so, in what way. However for we delicate flowers of the UK and Poland, there will be no change on the human rights front: see Art 1 -
In particular, and for the avoidance of doubt, nothing in Title IV of the Charter creates justiciable rights applicable to Poland or the United Kingdom except in so far as Poland or the United Kingdom has provided for such rights in its national law.
Pangloss is sadly no EU law nerd, and would welcome comment from any such out there as to whether this means we are in any way likely to receive less comprehensive privacy protection than the rest of the EU? Examples? This seems particularly relevant given the general feeling that the UK is implementing EC DP law at the minimum or below : see the EU's continuing efforts to persuade the UK to buck up over Phorm, not to mention long-simmering confusion or dismay over (a) Durant v FSA and (b) relatedly, our lack of sync with the Art 29 WP as to when and if to treat IP addresses as personal data.

It also of course means the UK remains unbound, at least in theory, by Article 36 of the Charter of Rights on Access to services of general economic interest. So no danger of the UK fast following in the footsteps of Finland and declaring access to broadband a human right? Surprising, that :-)

However before we Anglo-Saxons despair, we should remember the guidance from the ECJ in Promusicae which indicated that whether signatories or not and whether (as seemed uncertain at the time) the Lisbon Treaty ever became binding, the principles of the Charter of Rights are still likely to be regarded as part of EC law in the guise of underlying "general principles of Community law".


Tomáš Elbert said...

Some people claim that the opt-outs indeed won't have any relevant effect. For example here: http://lawprofessors.typepad.com/international_law/2009/10/agreement-on-the-legal-guarantee-to-be-offered-to-the-czech-republic-on-the-eu-lisbon-treaty.html (5th paragraph and following)

And since I'm from the Czech Republic (which will gain the opt-out during Croatia/Iceland EU accession), I as well hope that ECJ won't be restricted by these opt-outs.

Mats Björkenfeldt said...

Please see Peter Oliver´s article in Common Market Law Review 2009 issue 5: 'The Protection of Privacy in the Economic Sphere before the European Court of Justice'.

His critic against ECJ´s decision in i.a. Promusicae is most compelling...

Can we trust ECJ?