38.
The interference with the fundamental rights of the data subjects may stem from an act of law that either aims at or has the effect of restricting the respective fundamental right9. It may also result from an act of a public authority with the same purpose or effect or even of a private entity entrusted by law to exercise public authority and public powers.
39.
A legislative measure that serves as a legal basis for the processing of personal data directly interferes with the rights guaranteed by Articles 7 and 8 of the Charter10.
40.
The use of biometric data and FRT in particular in many cases also affect the right to human dignity, Article 1 of the Charter. Human dignity requires that individuals are not treated as mere objects. FRT calculates existential and highly personal characteristics, the facial features, into a machine-readable form with the purpose of using it as a human license plate or ID card, thereby objectifying the face.
41.
Such a processing may also interfere with other fundamental rights, such as the rights under Articles 10, 11 and 12 of the Charter insofar as chilling effects are either intended by or derive from the relevant video surveillance of law enforcement agencies.
3.1.3 Justification for the interference 42.
43.
44.
According to Article 52(1) of the Charter, any limitation to the exercise of fundamental rights and freedoms must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the European Union or the need to protect the rights and freedoms of others. 3.1.3.1 Provided for by law Art. 52(1) of the Charter sets the requirement of a specific legal basis. This legal basis must be sufficiently clear in its terms to give citizens an adequate indication of conditions and circumstances in which authorities are empowered to resort to any measures of collection of data and secret surveillance11. It must indicate with reasonable clarity the scope and manner of exercise of the relevant discretion conferred on the public authorities so as to ensure individuals the minimum degree of protection as entitled under the rule of law in a democratic society12. Moreover, lawfulness requires adequate safeguards to ensure that in particular an individual’s right under Article 8 of the Charter is respected. Given that biometric data when processed for the purpose of uniquely identifying a natural person constitute special categories of data listed in Article 10 of the LED, the different applications of FRT in most cases would require a dedicated law precisely describing the application and the conditions for its use.
9
CJEU, C-219/91 – Ter Voort, RoC 1992 I-05485, para. 36f.; CJEU, C-200/96 – Metronome, RoC 1998 I-1953, para. 28. 10 CJEU, C-594/12, para. 36; CJEU, C-291/12, para. 23 and the following. 11 ECtHR, Shimovolos v. Russia, § 68; Vukota-Bojić v. Switzerland. 12 ECtHR, Piechowicz v. Poland, § 212.
13 Adopted - version for public consultation
