The 7th of all EU-r rights: Private life and how the Charter contributes

Elephants are well known for their close family ties and complex (by the way: matriarchic) social structures.[1] If they were able to read they would presumably appreciate Article 7 of the Charter. This provision says: “Everyone has the right to respect for his or her private and family life, home and communications.“ It is a short and simple sentence encapsulating 4 key human rights that together protect our privacy as individuals against inappropriate intrusion by the state.[2] In its Article 7 the EU Charter protects:

• our personal identity and autonomy;
• our right to live in a family;
• our flat or house, and
• the secrecy of our correspondence with others.

The Charter right in action

The Charter has been invoked by national courts in a wide range of situations. For instance in the context of the question, whether a photograph and a video recording of intimate acts between a male asylum seeker and another man could be used before court in order to prove the sexual orientation of the asylum seeker. An example of which came to court in a case set before the Supreme Adminstrative Court in Finland.[3]

Another concrete example: In Lithuania the Supreme Adminstrative Court referred to Article 7 in the context of the spelling of family names in official documents. In her Lithuanian passport, the person concerned had her name spelled with original, i.e. non-Lithuanian symbols, such as “x” and “w”.The authorities refused to issue the renewed passport with the original spelling of the name. The case went up through the judicial instances. The Supreme Administrative Court stated the following “Even though Article 7 of the Charter does not refer explicitly to the person’s forename and surname, they none the less concern … private and family life, as means of personal identification and a link to a family“.[4]

What do the constitutions of the Member States say?

Given the fact that the right to private and family life is a well established entitlement in human rights law, all constitutions show comparable rights. However, these entitlements are not necessarily concentrated in one single provision as is the case with the Charter. For instance, in Austria, three separate provisions deal with the “rights of the home“, the “privacy of letters“ and “telecommunications secrecy“.[5] In fact it appears  to be the exception, rather than the rule that all entitlements are centralised in one single provision. The Charter text appears to be far more condensed than the text of national constitutions.

In some countries, specific aspects of privacy are highlighted. In Portugal a specific right to identity[6] is established and the constitutions of Bulgaria[7], Croatia[8], Finland[9], Poland[10], Portugal[11], Spain[12] and Slovakia[13] explicitly protect the “honour“ and/or the “good reputation“ of individuals. The constitution of Sweden explicitly protects against bodysearches and eavesdropping[14] , whereas some constitutions are especially explicit when it comes to the possible justifications allowing intrusions in correspondence (Cyprus)[15] or the domicile (Romania)[16]. A definition of the term ‘family’ is for instance provided in Estonia[17] and Ireland’s[18] constitutions.

So what?

Article 7 is a multi-component right that largely reflects the corresponding provision in the Council of Europe’s European Convention on Human Rights, the ECHR.[19] Its different dimensions aim to protect our privacy. It is therefore linked to the right to data protection in Article 8 of the Charter– often the two rights are invoked together. Whereas data protection is densely regulated by EU legislation, family life is not. Given that the Charter only applies in areas where the EU holds a competence, Article 7 is of special practical relevance where there is important EU legislation. This is, for instance the case for the important question of whether or not migrant workers or asylum seekers may join their families. However, in constellations falling outside the scope of EU law, Article 7 of the Charter doesn’t have much to contribute.

Interested in knowing more? Well, here you are: ‘All EU-r rights‘, stay tuned!

Gabriel N. Toggenburg is an Honorary Professor for European Union and Human Rights Law at the University of Graz, Austria. He worked as a Senior Researcher for Eurac Research in Bolzano/Bozen (Italy) from 1998 to 2008. Since 2009, he has been working for the European Union. All views expressed are his own and cannot be attributed to his current or former employers. His blog series “All EU-r rights” published on EUreka! aims at making the EU Charter of Fundamental Rights better known. He is grateful for the honour to have every blog entry introduced by a piece of art by Miloladesign. An annotated list of all Charter rights is available here.

[1] For a basic introduction see “Elephants are socially complex” in Elephantvoices.

[2] The text of the Council of Europe’s European Convention on Human Rights (ECHR) gives guidance under which conditions the right can be limited. Art. 8(2) ECHR states: “There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” This provision needs to be taken into account given that Article 7 of the Charter applies in combination with Art. 52 (1) and (3) of the Charter.

[3] Finland, Supreme Administrative Court / KHO:2018:52; Decision 1762, 13.04.2018; 3891/4/17.

[4] Lithuania / Supreme Administrative Court / decision A-2445-624/2017, 28.2.2017.The Court quoted the CJEU, case Sayn-Wittgenstein, C-208/09. See the  judgement that concerned the name of a ‘fake duchess’ Gabriel N. Toggenburg, Die ‘falsche Fürstin’: Zum grenzüberschreitenden Verkehr von Adelstiteln vor dem Hintergrund der Unionsbürgerschaft, in European Law Reporter 3(2011), 74-81.

[5] Art. 9(1), 10 and 10a of the Austrian Basic Law on the General Rights of Nationals.

[6] Art. 26 (1) of the Portuguese constitution.

[7] Art. 32 (1) of the Bulgarian constitution.

[8] Art. 35 of the Croatian constitution.

[9] Art. Section 10 of the Finnish constitution.

[10] Art. 47 of the Polish constitution.

[11] Art. 26 (1) of the Portuguese constitution.

[12] Art. 181 of the Spanish constitution.

[13] Art. 19 (1) of the Slovak constitution.

[14] Art. 6 of the Swedish constitution.

[15] Art. 17 (2) lit. a) – e) of the Cypriot constitution.

[16] Art. 27 (2) lit. a) – d) of the Romanian constitution.

[17] Art. 27 of the Estonian constitution.

[18] Art. 41.1.1. of the Irish constitution.

[19] Art. 8 (1) ECHR which states: “Everyone has the right to respect for his private and family life, his home and his correspondence“.