Digital Empire or Digital Fiefdoms? Institutional Tensions and the EU Right to Data Protection

Abstract The EU has been represented as a singular ‘Digital Empire’ speaking with one voice on matters of EU digital regulation. Closer examination of discrete areas of EU digital regulation reveals a more nuanced picture suggesting clear institutional divergence between the EU institutions regarding the substantive protection afforded by EU law. A detailed analysis of EU data protection adequacy decisions brings to the surface intra-EU tensions concerning the substance of core EU fundamental rights. This analysis reveals that the EU Commission has taken on a more prominent role in adequacy decision-making since the entry into force of the EU’s General Data Protection Regulation at the expense of other relevant stakeholders. Furthermore, the Commission’s decisional practice does not align fully with the stance of the Court of Justice on the right to data protection. New sites of intra-EU human rights tensions are therefore uncovered with consequences for the legitimacy of the EU as a digital regulator and the role of the Commission as a guardian of the treaties.