‘The police car just isn’t fast enough’ Mobilizing the EU Remedies System in the Field of Data Protection

Abstract

In the field of data protection, several civil society actors engage with the EU remedies system in order to attain their goals. Famous examples include the mobilization of the preliminary reference procedure by Digital Rights Ireland and Max Schrems, but also complaints to the European Union (EU) Commission and letters to the European Data Protection Board are forms of EU legal mobilization. This proliferation of strategies within the EU system raises the question: who are these actors and why do they choose an EU (extra-)legal avenue? This paper explores the use of the EU remedies system by civil society actors in the field of data protection. Firstly, the EU remedies system is set out, including formal legal avenues, such as direct actions and the preliminary reference procedure before the Court of Justice of the EU. Additionally, extralegal, administrative actions are set out, for example the petition to the European Parliament, complaints to the Commission and the Ombudsman, and the European Citizen’s Initiative. Afterwards, the paper delves into (EU) legal mobilization theory, to find possible explanations for the use of one or multiple of these avenues by civil society actors. This theory is then tested empirically through interviews with data protection NGOs active in the EU. In this field of law, legal opportunities – especially procedural law – as well as organizational identity determines whether the EU remedies system is mobilized. Other factors that are, in theory, relevant, appear in the analysis in an interconnected way. The research shows how procedural law throughout the EU at national level, but also within the EU system, could be more harmonized and procedural hurdles lowered, in order to provide for effective means of enforcement.