EU Charter. ‘The freedom to conduct a business in accordance with Union law and national laws and practices is recognized.’ As regards the significance of the EU Charter for financial supervision law, see: E. Dieben, ‘Vijf jaar bindend EU-Handvest en het financieel toezichtrecht’, in X. Xxxxxxx, X. xx Xxxxx and X. Xxxxx (eds), Vijf jaar bindend EU Grondrechten- handvest (Deventer: Wolters Kluwer, 2015) 277–350.
EU Charter and care, research, damage compensation et cetera. The following section therefore seeks to provide a general overview on how the citizens’ rights are nationally implemented. Given the focus of the deliverable on the citizens’ rights in eHealth, noteworthy aspects integrated in the national confidentiality, privacy, and data protection legislations will be introduced briefly where deemed relevant.
EU Charter. The EU Charter is legally binding as per Article 6(1) TFEU, while the essence of the right as per Article 51(1) EU Charter has been said to yet not be ascertain. 52 As the Charter of Fundamental rights became legally binding, the right to data protection found its way into the EU Treaties where it is codified in Article 16 TFEU and Article 39 TEU.53 Besides, Article 8(2) EU Charter stipulates the requirements for an interference with Article 8(1) EU Charter in a broad way. Paragraph 2 particularly requires data controllers and data processors to process the personal data “fairly for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law”. Xxxxxx, the EU Charter provides the legislator with a certain margin of appreciation for determining the legitimate aim in correspondence with Article 52 (1) EU Charter that may justify an interference with the fundamental right to data protection for reasons of general interest.54 Article 52 (1) EU Charter requires that any limitation must be provided for by law and respect the essence of the fundamental rights and freedoms. The European Convention on Human Rights, on the contrary, provides a more specific list of legitimate aims in Article 8 (2) ECHR.
EU Charter. The concept of informed consent has a pivotal role in medicine and within the data protection framework.55 In particular Article 8 (2) EU Charter underlines the importance of consent for the protection of the citizens’ fundamental rights. This paragraph stipulates that personal data must be processed fairly “on the basis of the consent of the personal concerned or some other legitimate basis laid down by law”, while Article 3 (2) EU Charter safeguards the patients’ consent to medical treatment. Article 3 EU Charter guarantees the right to respect an individual’s physical and mental integrity in general, whereby, in particular in the fields of medicine and biology, free and informed consent must be respected as per Article 3 (2)
EU Charter. Citizens have to consent to two distinct conditions, once to the medical examination v. Sweden, Reports of Judgments and Decisions 1997‑IV, 27.08.1997, para. 38, 42, and 43. 52 Xxxxxxxx Xxxxxx X (2015) “Curtailing a right in flux: restrictions of the right to personal data protection” in: Xxxxxx Xxxxx Xxxxxxxx and Xxxxxxx Xxxxxx Xxxxxxx (eds.), “Hacia un nuevo régimen europeo de protección de datos. Towards a new European Data Protection Regime” Tirant lo Blanch (2015), p. 515. 53 Kranenborg H (2014) Art 8 – Protection of Personal Data. In: S. Xxxxx, X. Hervey, X. Xxxxxx & X. Xxxx (Eds.). The EU Charter of Fundamental Rights: A Commentary (pp. 223–266). London: Xxxx Publishing, para. 08.08. 54 Xxxxxx J, Xxxxxxx C(2013) The distinction between privacy and data protection in the jurisprudence of the CJEU and the ECtHR. International Data Privacy Law. Vol. 3. No. 4, p. 224. 55 Xxxxxxxxx X, Xxxxx P (2014) mHealth and data protection – the letter and the spirit of consent legal requirements. International Review of Law, Computers & Technology. Vol. 28, No. 2, 222–236, p. 222. xxxx://xx.xxx.xxx/10.1080/13600869.2013.801581. affecting their physical or mental integrity as well as to the processing of their patient data.
EU Charter. The right of access to personal data is explicitly enshrined in Article 8(2) EU Charter and falls within the scope of the right to private and family life according to Article 8 ECHR56. The CJEU repeatedly confirmed that legislation not offering any opportunity for individuals to seek legal remedies in order to get access to their personal data, or to have their data rectified or erased, does not respect the essence of the fundamental right to effective judicial protection as laid down in Article 47 EU Charter.57 Article 47(1) EU Charter in particular safeguards the right to an effective remedy for everyone whose rights and freedoms guaranteed by EU law have been violated. The existence of effective judicial review, pursuing to guarantee compliance with EU legislation, has been considered to be intrinsic to the rule of law.58 To this end, national Data Protection Authorities play an imperative role for respecting citizen’s rights, as they, for instance, own the competence to authorize access to specific national data spaces (e.g. French Health Data Hub).59
