The decision No. 20/2019 of the Italian Constitutional Court has made headlines above all for the general profiles connected with the judicial treatment of issues covered by both fundamental national rights and the Charter of Fundamental Rights of the European Union (the s.c. “dual preliminarity”). Instead, this contribution intends to emphasize the importance (in this same perspective) of the merit of the issue addressed. In particular, the analysis shows why the forum chosen by the referring judge to evaluate the balancing defined by Legislative Decree No. 33/2013, between the right to transparency and the right to protection of personal data, has influenced the outcome of such judgment. To this end, two elements are relevant. On the one hand, the asymmetric framework that characterizes the clash between the two rights at stake: the second, attracted in the sphere of Eu law; the first, strictly relevant to the Member States’ legal system. Furthermore, it should be noted the different consideration reserved for them. While the jurisprudence of the Cjeu clearly shows the systematic pre-eminence of the right to the protection of personal data on the right to transparency, according to the Italian Constitutional Court they deserve “equal respect”. Precisely this “parity of arms”, assigns the legislator a more extensive manoeuvring space for the balancing, to be played not in terms of strict proportionality and necessity, but rather according to the canon of reasonableness.
Il luogo adatto dove bilanciare. Il “posizionamento” del diritto alla riservatezza e alla tutela dei dati personali vs il diritto alla trasparenza nella sentenza n. 20/2019
benedetto ponti
2019
Abstract
The decision No. 20/2019 of the Italian Constitutional Court has made headlines above all for the general profiles connected with the judicial treatment of issues covered by both fundamental national rights and the Charter of Fundamental Rights of the European Union (the s.c. “dual preliminarity”). Instead, this contribution intends to emphasize the importance (in this same perspective) of the merit of the issue addressed. In particular, the analysis shows why the forum chosen by the referring judge to evaluate the balancing defined by Legislative Decree No. 33/2013, between the right to transparency and the right to protection of personal data, has influenced the outcome of such judgment. To this end, two elements are relevant. On the one hand, the asymmetric framework that characterizes the clash between the two rights at stake: the second, attracted in the sphere of Eu law; the first, strictly relevant to the Member States’ legal system. Furthermore, it should be noted the different consideration reserved for them. While the jurisprudence of the Cjeu clearly shows the systematic pre-eminence of the right to the protection of personal data on the right to transparency, according to the Italian Constitutional Court they deserve “equal respect”. Precisely this “parity of arms”, assigns the legislator a more extensive manoeuvring space for the balancing, to be played not in terms of strict proportionality and necessity, but rather according to the canon of reasonableness.I documenti in IRIS sono protetti da copyright e tutti i diritti sono riservati, salvo diversa indicazione.
