A Theory of EU Data Protection Law

This article aims to introduce and describe a concept depicting a specific and novel form of constitutional right, to offer a basic theoretical proposition on – theory of – EU data protection law on the basis of this concept, and to demonstrate the theoretical worth and practical utility of this proposition. In this regard, the article introduces and describes the concept of the interface right – a specific and novel form of constitutional right which essentially functions to mitigate the consequences of uncertainty, brought about by change in social context, for the functionality of a set of substantive constitutional rights, by providing a legal infrastructure which ensures a reflexive relationship between the order of substantive rights and social context. Building on this concept, the article then offers, and demonstrates the theoretical worth of, the following basic theoretical proposition on – theory of – EU data protection law: the right to data protection can be considered as an interface right, and secondary EU data protection law represents the unfolding of this underlying interface right.To demonstrate the practical utility of the basic theoretical proposition, the article then takes four significant issues in EU data protection law and shows how analysis of these issues through the perspective of the proposition can lead to novel insights and novel lines of enquiry. These issues include: i) the values served by the right to data protection; ii) norm creation in Data Protection Impact Assessments; iii) the legal status of guidance from the European Data Protection Board; and iv) the relationship between EU data protection law and medical research ethics. The article concludes with a consideration of certain significant objections which might be put forward against the concepts and propositions offered. Keywords: theory, data protection, interface right, complexity, uncertainty