The House of Data Imperiali bulletins are extracts from the articles of the Legal Information Service (SIG) edited by Mr. Rosario Imperiali d’Afflitto.

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Fundamental Rights and Freedoms – 2

The GDPR aims to protect the fundamental rights of the individual, in particular, the right to protection of personal data. Respect for fundamental rights is the essential condition for the lawfulness of processing for compliance with the principle of lawfulness enshrined in Article 5(1)(a).  
Rights and freedoms represent the legal framework within which the European regulation moves, so the clear identification of the type and scope of each is also essential for the verification of compliance with the requirements of the GDPR.  
The previous bulletin on this topic is the one of October 6.

Legal framework for fundamental rights

The European Union in 2007 established a special agency (EU Agency for Fundamental Rights or “FRA”) to institutionalize fundamental rights in EU law and policy.  

In the EU and EEA member states-as noted by the FRA-fundamental rights and freedoms are ensured by a four-tiered legal framework that is directly or indirectly interconnected: 

  • National level, usually through national Constitutions 
  • European Union level, through the Union Treaty and the EU Charter of Fundamental Rights of 2000 
  • Council of Europe level, through the 1950 European Convention on Human Rights 
  • United Nations level, with the 1948 Universal Declaration of Human Rights and the major UN conventions on the subject.


Through this legal entanglement, an individual wishing to file a complaint about a violation of fundamental rights will first seek to have his or her case resolved before the national courts. 

If the complaint concerns an area of EU law, the national court may refer the case to the CJEU. 

If the complaint is outside the scope of EU law and the individual does not obtain a favorable outcome from the national court system-or if the EU system does not offer a satisfactory conclusion-then there is the option of bringing the case before the European Court of Human Rights (ECtHR) or, alternatively, one of the UN treaty bodies, if they have an individual complaint mechanism.

CJEU and Commission to protect human rights

The appeal by an individual to the CJEU for alleged violations of fundamental rights can be direct or indirect; it is more common for an individual to recourse indirectly to the CJEU: this may occur when a person files a complaint with the national courts and if questions arise regarding the interpretation of relevant EU legislation and its compatibility with the Charter. In such cases, the national court may choose to refer the questions to the CJEU for its opinion (preliminary reference under Article 267 TFEU). Therefore, it is the national court – rather than the individualwho decides whether to refer the case to the CJEU.

The European Commission can also initiate proceedings before the CJEU against a member state (under the so-calledinfringement procedure“) on the assumption that the member state has either failed to implement a part of EU human rights legislation or has implemented it in a way that contravenes fundamental rights.

EU Fundamental Rights

At the level of the EU/EEA countries, there is consistent uniformity in the determination of fundamental rights, given that all of these states are bound by the EU treaties and the 2000 Nice Charter (which became binding with the 2009 Lisbon Treaty and has the same legal force as the founding treaties of the Union), as well as being Parties to the European Convention on Human Rights (ECHR) and have acceded to other Council of Europe treaties along with a number of UN human rights treaties.

The Council of Europe, as is well known, is not part of the European Union: it is a separate international organization, founded in 1949, that promotes human rights, democracy and the rule of law.

Therefore, the EU and its member states, when acting under EU law, are bound by fundamental rights as a result of the jurisprudence of the CJEU, the Nice Charter and the Council of Europe’s ECHR, the latter because of the member statesobligations to that convention. The EU, as such, is in the process of acceding to the ECHR.

Respect for human rights is also enshrined in Article 2 of the Treaty on European Union (TEU), which states that the EU must be founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities.” Under Article 7 of the TEU, the EU can determine the existence of a “clear risk of a serious breach by a member state” or even determine “the existence of a serious and persistent breach” of the values referred to in Article 2. On these legal grounds, the EU sometimes, as recently with regard to some Eastern European member states, challenges member states for adopting rules or conduct contrary to the founding values of the Union (Articles 2 and 7, TEU).