Understanding and Assessing the Contribution of the CJEU to the Mandate Under Article 16 TFEU

Abstract

This chapter analyses the contribution of the EU Court of Justice to the fulfilment of the mandate under Article 16 TFEU. It focuses on the institutional position of the EU Court of Justice in the constitutional order of the Union and on its role as a constitutional court in relation to the protection of fundamental rights. To a certain extent this role compensates for the democratic deficit of the Union. The Court adjudicates in cases by interpreting the EU rules in the light of the fundamental rights in the EU Charter. The chapter proposes a simple taxonomy enabling a differentiation in the standard of review for the fundamental rights protection on the internet. It discusses the balancing of privacy and data protection, on the one hand, with the freedom of expression, the right of access to documents, the right to property, including intellectual property, and the public interest of security, on the other hand. Not all these rights, freedoms and interests are valued equally.