The Protection of Privacy in the Economic Sphere before the European Court of Justice

In: Common Market Law Review, Volume 46, Issue 5, p. 1443-1483

Abstract

This article focuses on five recent judgments of the ECJ and CFI: ProMusicae, Varec, Pergan, Bavarian Lager and Satamedia. Taking as its starting-point the case law of the European Court of Human Rights (ECtHR) on Article 8 ECHR and on Articles 7 and 8 of the Charter of Fundamental Rights, the author considers how the Community Courts have approached the protection of privacy in the economic sphere (i.e. as regards matters relating to undertakings within the meaning of Arts. 81 and 82 EC and the economic aspects of the lives of natural persons) in the various relevant sectors, especially: data protection, the protection of business and other professional secrets, defamation and inspections (Hoechst and Roquette). Within each of these sectors, particular attention is paid to the specific provisions and case law relating to competition. Inevitably, the inherent tension between the protection of privacy and the principle of transparency repeatedly comes to the fore. Generally speaking, the author welcomes the approach taken by the Community courts, notably their increased emphasis on fundamental rights. However, he claims that, where the case law of the ECtHR is uncertain, this emphasis has at times occurred at the expense of the uniformity of Community law and even of legal certaintly - a development which is of particular concern when the unity of the internal market is at stake. The judgments in ProMusicae and Satamedia are then criticized in this regard.