c. Overlaps between DP and AD: many questions left to answer
It would also be interesting to compare the proportionality test in DP with the one
in AD law, but at the moment there is too little case law to say anything conclusive
about this issue. Moreover, because of the scattered scope of AD law it will be
difficult to say whether these considerations are applicable to AD law in general,
or relate to a specific field, such as nationality based discrimination in Huber .
With regard to statistical profiling we can conclude that both data protection
and anti-discrimination are struggling to address some of the challenges raised by
the spread of this data technique. In the context of data protection, discussions are
particularly circled around whether the application of anonymized data to an
identifiable person falls within the scope of the Directive. 38 In the context of anti-
discrimination, statistical profiling raised the question as to whether the fact that
data are accurate and up-to-date exonerates the prohibition of discrimination.
Statistical profiling also poses the question whether attributes, and complex
algorithmic combinations of attributes, which do not belong to any of the
specifically protected grounds might bring the concept of indirect discrimination
and the “art. 6 DP + general equality”-route to the frontline (and as a matter of
fact, any difference of treatment that is not based upon the protected grounds).
4.8 Conclusions: Articulating the Two Rights
In the preceding pages, we have attempted to compare data protection and anti-
discrimination legislations in the EU legal order.
Beyond differences relating to their respective scope and object, we have
observed an increasing convergence in their legal regimes. This convergence, we
have argued, can be better understood by tracing back their theoretical
underpinnings, and more precisely their nature as human rights embodying the logic
of negative freedom as put forth by Berlin, that is, as regulatory human rights.
Because both rights protect the freedom of the individual from the same
perspective, it is not excluded that their protection might overlap, as has been
shown with the Huber and Test-Achats cases.
In the light of contemporary practices such as statistical profiling, it seems clear
to us that, in the coming years, both rights will increasingly overlap. Therefore, it
might be interesting to give some thoughts on precisely how to best articulate
As a matter of fact, we would like to make the point that the protection offered
by these two rights is complementary. Hence it is very unlikely that their
articulation would lead to clashes or antagonistic results, although some have
made the point that this could be the case. In his article, Strahilevitz (2008) argues
that having one's data publicly available in a database is actually advantageous
and “will reduce the prevalence of distasteful statistical discrimination.” (p. 364)
Illegitimate, distasteful discrimination is here understood as a heuristic used in
38 And around the right to access the data and the logic involved in statistical profiling (art.
12 DP ), and the right not to be subjected to a decision based solely on automated
processing (art. 15(1) DP ). However, this is beyond the scope of our discussion.