A comparative analysis of anti-discrimination and data protection legislations

The make a comparison between European anti-discrimination law and data protection law. Both the differences and the overlap are discussed. They show that both rights have the same structure and increasingly turn to the same mode of operation in the information society, even though their content is far from identical. They show that this is because both rights are grounded in the notion of negative freedom as evidenced by I. Berlin, and thus aim at safeguarding the autonomy of the citizen in the information society. Finally, they analyze two cases where both rights apply, and draw conclusions on how to best articulate the two tools.

Departing from the ECJ's Huber case where Germany was condemned for discriminatory processing of personal data and which suggests that there is a strong kin between data protection and discrimination issues, this chapter is an attempt to further compare the two fundamental rights (i.e., non-discrimination, and data protection).
Beyond their place in the EU legal order, their respective object or scope, this chapter will contend that these two human rights increasingly turn to the same mode of operation, including, inter alia, reliance upon administrative structures and procedures, or the endowment of citizens with a bundle of individual rights.
We will argue that this similarity can be understood in the light of their nature as regulatory human rights, that is, embodying the logic of negative freedom (cf. Berlin).
The final section will examine situations of overlap between the rights, building upon the Huber and Test-Achats cases. This will lead to final conclusions on how to best articulate these rights.