Data mining and Profiling in the Area of Freedom, Security and Justice: State of Play and New Challenges in the Balance between Security and Fundamental Rights Protection

Th is article analyses the impact of the use of data processing mechanisms (i.e. data miningand profi ling) as investigative tools on the fundamental rights of individuals. It highlightsthe pressing need to achieve a fair balance between social security and individual’sfreedoms when data processing mechanisms are used in criminal investigations, providingfor a set of limits to ensure the necessary protection of fundamental rights of individuals,without frustrating investigation exigencies. In this respect, the article examines thecurrent EU legislation and the new proposals under discussion concerning the protectionof privacy and data protection at the EU level, the relevant case law of the EuropeanCourts (CJEU and ECtHR) and the general tendencies in the Member States’ legislation,in order to build up an ‘integrated table’ of constraints, particularly useful for theEuropean legislator in the adoption of common legislation at the EU level.Th e article also stresses the crucial role of the CJEU in achieving the above mentionedbalance between investigation needs and individuals’ rights protection, especially aft erthe entry into force of the Lisbon Treaty and the explicit recognition of the bindingnature of the Charter of fundamental rights of the European Union providing for anexpress provision on data protection. Th e authors nevertheless point out the remainingprominent role of the ECtHR in protecting fundamental rights at the supranationallevel, because of some persisting limitations to the competence of the CJEU in AFSJmatters, and the perspective of enhancement of fundamental rights protection at EUlevel following future EU accession to ECHR.