A Comparative Analysis of Anti-Discrimination and Data Protection Legislations - Discrimination and Privacy in the Information Society - page 60

Therefore, beyond the crucial data protection issue of the secondary use of
personal information available in specific databases, the issue at stake here is the
discriminatory consequences of data processing operations.
Departing from the link made by the ECJ between discrimination and data
processing, this article will further explore the relation between the rights to data
protection and anti-discrimination, and will undertake a comparative analysis
between them.
The first part of this chapter will be dedicated to a comparison of the legal
architecture of the two rights. 3 Beyond the similar fashion in which they are
integrated into the EU legal order, we will focus our attention on the object of the
two legal frameworks. We will show that whereas the object of data protection
legislation (i.e., the processing of personal data) is a fairly straightforward notion,
the same cannot be said concerning discrimination. Closely linked to this first
remark, is the scope of both legislations. Here too, contrarily to data protection's
scope, which is evenly distributed, the scope of anti-discrimination is scattered, not
least because of the different Directives that have been adopted and that each
protects a specific ground. Finally, we will embark on a comparison of the legal
regimes (LR) of the two rights. This exercise will evidence the presence in both
legislations of an administrative body as well as a bundle of subjective (i.e.,
individual) rights granted to the concerned legal subjects. We will argue that the
differences between the two legal regimes can be traced back to a fundamental
difference, that is, whereas data protection concerns one particular action, anti-
discrimination concerns one precise legal outcome no matter the action it stems
from. However, we will also argue that these differences are not as fundamental as
they might appear prima facie , and that future legislation might even severely
mitigate them.
In the second part of this chapter, we will try to make sense of the comparison
between the legal regimes by going back to the theoretical underpinnings of the
two rights. As human rights, they are fundamentally bound to the democratic
constitutional state, and hence to the notion of freedom. Building upon Berlin's
dichotomy between positive and negative freedom, we will make the case that
both data protection and anti-discrimination embody the logic of negative
freedom, which (at least partly) accounts for their similar legal regimes, and
justifies that we qualify them as “regulatory human rights”.
The third and last part of the chapter will be dedicated to situations of overlap.
We will show how one given legal situation can be simultaneously apprehended
through the two lenses, by building upon the Huber case already mentioned in the
introduction, and the Test Achat case.
We conclude by proposing how to best articulate these rights.
4.2 Place of the Two Rights in the EU Legal Order
The protection of both rights follows the same pattern from the perspective of the
hierarchy of norms: both rights are enshrined in the EU Charter of Fundamental
Rights (EUCFR), and can therefore be considered as autonomous fundamental
3 A comparison of the theoretical underpinnings of the legal similarities and differences is
beyond the scope of this chapter.