The National Scope in the General Data Protection Regulation

Christian Gottlieb Kilsgaard & Eric Møller

Student thesis: Master thesis

Abstract

The thesis will see how Denmark has used the possibilities to make national rules in the new General Data Protection Regulation (GDPR), and if they are within the means to make national legislation. Furthermore, the thesis will see how the rule affect the Danish society and if the rule is efficient in the perspective of the society. In the GDPR the means, for the national states within the EU, to make national rules so they can maintain or introduce national provisions to further specify the application of the rules of this Regulation is regulated in article 6 (2), points c (legal obligation) and e (public interest). Furthermore, it is a demand in that regulation and due to previous decision made by the EU court, that the national legislation can only specify the rules, and not make further demands to the rules. Denmark has used the possibility to make national legislation. They’ve used it in their data protection law § 13, which says that a company cannot pass on information about a consumer to another company, which is used in direct marketing, or used the information on behalf of another company in this purpose, unless the consumer has given its expressed consent to this. The consent must be obtained in compliance with the rules in the Danish marketing practices act § 10. This does not comprehend with the ways given by the EU in the GDPR, because it does not rely on a legal obligation to make this law, nor is it in the public interest to make this law. It relies instead on article 6, stk. 1, point f, which the GDPR clearly says is not a legal way to make national rules. Denmark's data protection law § 13 says, that a company must obtain the expressed consent from a consumer before passing on information about a consumer to another to use in direct marketing. The consent and furthermore the expressed consent is a transaction cost for the company and therefore also for the society, because there is a deadweight loss because of the expressed consent. It is natural that there are also positive externalities about § 13, which is the protection of consumers rights. However, it must be assumed, that the EU, who has an article about consumers right in their treaty, has secured the highest possible rate of consumer rights in the GDPR, so the negative externalities overcome the positive sides of § 13. Denmark and EU also both have reasons to incitements to work together, so they both can get the highest benefit. Mainly because they both get the highest benefit if they work together. If they work together, Denmark will not make § 13, but will instead rely solely on the GDPR. This will create for a better inner digital market and Denmark and EU will be better off with this solution.

EducationsMSc in Commercial Law, (Graduate Programme) Final Thesis
LanguageDanish
Publication date2018
Number of pages128