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This report maps the use of the Charter by 14 1 National Data Protection Authorities (hereafter NDPAs) and the EDPS, who responded to the second round of the CharterClick! Questionnaire. This is a crucial period to study the use of the Charter by DPAs, since they are preparing the enforcement of the substantive overhaul of the data protection legal framework. This report focuses on the most significant results. Responses to the questionnaire confirm the divergence in tasks and powers of NDPAs across Europe, but also show how all NDPAs play the role of quasi-judicial authorities. Importantly, both quantitative and qualitative data show that NDPAs do not avail themselves of the Charter as widely as they could. Rather, NDPAs use it as an instrument among other fundamental rights related instruments, often to support auxiliary arguments. Significantly, most NDPAs do not keep statistics concerning their use of the Charter. One reason for the ‘underuse’ of the Charter may be the hurdles entailed by its use. A second reason may relate to the limited training initiatives on the use of the Charter, geared either to the staff of the NDPAs or to specific entities that may avail themselves of the Charter. A third, and perhaps more convincing reason in the light of the qualitative information provided by NDPAs, is the perceived value of the Charter. The Charter’s auxiliary and supplementary role may be tied to the perception that the Charter: affords a level of protection equivalent to that of national sources; it has ‘reduced’ precedence vis-a-vis national sources which define NDPAs’ mandate; and is generally not used by courts. Qualitative data does not sanction the irrelevance of the Charter, but rather the fact that NDPAs rely on the Charter instrumentally (as they do for other laws), on the basis of its usefulness, accessibility and knowledge. In their day-to-day practice, NDPAs do not seem to adhere to the theory of sources, but rather they follow a pragmatic approach dictated by their restricted mandate. This seems to challenge the formal primacy of the Charter. NDPAs are divided as to the import of the changes to be brought about by the General Data Protection Regulation (hereafter GDPR), and Directive 2016/680. While 60% of the respondents anticipate that their mandate will change, the remaining 40% are equally split between uncertainty and the belief that nothing will change. Conversely, more than half of the respondents believe the Charter will not play a greater role after the entry into force of the GDPR and Directive 2016/68 (despite its clear centrality in both instruments). The conclusions to this report offer some recommendations as to the added value of the Charter, particularly in the context of a new regulatory environment that aims at homogeneity, rather than harmonization, across the Union (e.g. with reference to the new instrument of joint operations). The discussion of these results by the NDPAs community may benefit from a number of recommendations that come from the experience of the CharterClick! Project, namely to: i) conduct training on the Charter; ii) make use of tools that support decision-makers in clarifying the scope of application of the Charter, such as the CharterClick! Toolkit; iii) experiment in introducing the Charter, as courts and other authorities will follow; iv) keep statistics on the use of the Charter in the various activities; v) and discuss the results with colleagues.

Use of the Charter of Fundamental Rights by National Data Protection Authorities and the EDPS