De constitutionele implicaties van wetgeving inzake grondrechten op het gebied van EU-gegevensbeschermingsrecht

The research focuses on the question to what extent the EU legislature can give specific expression to a fundamental right through legislation, and what the constitutional implications are of such pieces of legislation. The research demonstrates that legislation giving expression to the fundamental right to data protection has profound implications for the relationship between the different actors involved (the CJEU, the EU legislature and national constitutional courts) and between the different layers of EU law (primary and secondary law). The research demonstrates how EU secondary legislation setting down harmonised rules with regard to the protection of the fundamental right to data protection may form the catalyst of a 'constitutional trilogue' between the aforementioned actors. It analyses the implications of concretising the constitutional right to data protection for two specific legislative rights provided for in EU data protection legislation, but warns against dissolving the boundaries between constitutional and legislative rights. The analysis also shows that the CJEU demonstrates a different approach to EU legislation giving expression to the fundamental right to data protection or EU legislation severely limiting that right. The potential for legislative reform is linked very strongly to the nature of the EU legislation involved and the CJEU's strict conditions and requirements. Finally, while national constitutional courts start taking up their European mandate more and more by making use of the Charter as a yardstick for review and inserting the GDPR in their case law, there is still a difference between the constitutional trilogue as a normative metaphor and its actual operation at the moment. The limits of a constitutional trilogue on the elaboration of a fundamental right are demonstrated if one or more of the actors involved do not act with loyal cooperation towards the other actors.