A Comparative Analysis of Anti-Discrimination and Data Protection Legislations - Discrimination and Privacy in the Information Society - page 58

Chapter 4
A Comparative Analysis of Anti-Discrimination
and Data Protection Legislations
Raphaël Gellert, Katja de Vries, Paul de Hert, and Serge Gutwirth 1 *
Abstract. Departing from the ECJ's Huber case where Germany was condemned
for discriminatory processing of personal data and which suggests that there is a
strong kin between data protection and discrimination issues, this chapter is an
attempt to further compare the two fundamental rights - non-discrimination, and
data protection.
Beyond their place in the EU legal order, their respective object or scope, this
chapter will contend that these two human rights increasingly turn to the same
mode of operation, including, inter alia, reliance upon administrative structures
and procedures, and the endowment of citizens with a bundle of individual rights.
We will argue that this similarity can be understood in the light of their nature as
regulatory human rights, that is, embodying the logic of negative freedom.
The final section will examine situations of overlap between the rights, building
upon the Huber and Test-Achats cases. This will lead to final conclusions on how
to best articulate these rights.
4.1 The Huber Case: How the German Register of Foreign
Nationals (AZR) Raises Both Questions of Data Protection
and Anti-Discrimination
In recent years automated data mining and profiling on large amounts of retained
data has become an increasingly important tool in both the public and private
sector. One salient example of the legal controversies arising from such practices
is the contestation of the German Ausländerzentralregister (AZR) in the Huber