Ask them where they got their legal degree”, someone recently exhorted people to do whenever someone made a link between Recital 4 of the GDPR and Article 16 of the EU Charter of Fundamental Rights, on the freedom to conduct business.
Yet now the EU Court of Justice has confirmed for the second time that this freedom encompasses the freedom to determine the price of a service, i.e. the right not to be forced to sell at a loss or without making a profit.
Does that mean that all CJEU judges got their legal degree at the same university as me?
Or does it mean that now, if someone alleges that the freedom to conduct business is irrelevant and only concerns very limited possibilities such as the conditions to open a business, we ought to ask that insulting question back?
A better idea though: maybe we could instead move beyond pettiness and look at what is being discussed from a legal perspective.
Imposing a Free Alternative Without Behavioural Advertising? That’s a clear restriction of the right to determine the price for a service.
Any restriction to a fundamental right or freedom has to be demonstrated as being necessary in a democratic society and foreseen by law. Yet that necessity part has so far never been established. And foreseen by law? I think EDPB Opinions are challengeable, but it remains to be seen if they are “law” in this particular sense.
But Pay or OK is illegal under the GDPR!” Really? Courts don’t seem to think so – including the CJEU. And no, the right to information does not comprise a general right to benefit from free services.
And again no, the right to privacy and the right to data protection do not prevail over the freedom to conduct a business – a balance is what Articles 52 & 54 of the EU Charter require.
So yes, the freedom to conduct a business is relevant.
The big questions for the near future then are:
– What fate awaits the EDPB’s Consent or Pay Opinion? Can it even stand, as a non-statutory restriction on the freedom to conduct business?
– Will the EDPB adopt a more balanced approach in its Guidelines, whenever they come out?
More on the judgment in question: https://lnkd.in/eSiP3yBV
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