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EYIEL Monographs
Studies in European and International Economic Law 28

Tobias Naef

Data Protection
without Data
Protectionism
The Right to Protection of Personal
Data and Data Transfers in EU Law and
International Trade Law
European Yearbook of International Economic Law

EYIEL Monographs - Studies in European

and International Economic Law

Volume 28

Series Editors
Marc Bungenberg, Saarbrücken, Germany
Christoph Herrmann, Passau, Germany
Markus Krajewski, Erlangen, Germany
Jörg Philipp Terhechte, Lüneburg, Germany
Andreas R. Ziegler, Lausanne, Switzerland
EYIEL Monographs is a subseries of the European Yearbook of International
Economic Law (EYIEL). It contains scholarly works in the fields of European and
international economic law, in particular WTO law, international investment law,
international monetary law, law of regional economic integration, external trade law
of the EU and EU internal market law. The series does not include edited volumes.
EYIEL Monographs are peer-reviewed by the series editors and external reviewers.
Tobias Naef

Data Protection without Data

Protectionism
The Right to Protection of Personal Data
and Data Transfers in EU Law
and International Trade Law
Tobias Naef
Faculty of Law
University of Zurich
Zurich, Switzerland

Dissertation of the Faculty of Law of the University of Zurich to obtain the degree of Doktor
der Rechtswissenschaft (Doctor of Law, PhD)
Approved at the request of Prof. Dr. Matthias Oesch and Prof. Dr. Christine Kaufmann
The Faculty of Law hereby authorizes the printing of this dissertation, without indicating an opinion of
the views expressed in the work.
Zurich, 10 March 2021
The Dean: Prof. Dr. Thomas Gächter

ISSN 2364-8392 ISSN 2364-8406 (electronic)

European Yearbook of International Economic Law
ISSN 2524-6658 ISSN 2524-6666 (electronic)
EYIEL Monographs - Studies in European and International Economic Law
ISBN 978-3-031-19892-2 ISBN 978-3-031-19893-9 (eBook)
https://doi.org/10.1007/978-3-031-19893-9

The pre-press stage and the publication were supported by the Swiss National Science Foundation
(SNSF).

© The Editor(s) (if applicable) and The Author(s) 2023. This book is an open access publication.
Open Access This book is licensed under the terms of the Creative Commons Attribution 4.0 International
License (http://creativecommons.org/licenses/by/4.0/), which permits use, sharing, adaptation,
distribution and reproduction in any medium or format, as long as you give appropriate credit to the
original author(s) and the source, provide a link to the Creative Commons license and indicate if changes
were made.
The images or other third party material in this book are included in the book’s Creative Commons license,
unless indicated otherwise in a credit line to the material. If material is not included in the book’s Creative
Commons license and your intended use is not permitted by statutory regulation or exceeds the permitted
use, you will need to obtain permission directly from the copyright holder.
The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication
does not imply, even in the absence of a specific statement, that such names are exempt from the relevant
protective laws and regulations and therefore free for general use.
The publisher, the authors, and the editors are safe to assume that the advice and information in this book
are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the
editors give a warranty, expressed or implied, with respect to the material contained herein or for any
errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional
claims in published maps and institutional affiliations.

This Springer imprint is published by the registered company Springer Nature Switzerland AG
The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland
To my parents
Acknowledgments

This book is based on my dissertation that was developed during my tenure as a

research associate at the Law Faculty of the University of Zurich and written during
my research stays in Lund; Amsterdam; Cambridge, UK; and Washington D.C. It
was finalized back again in Zurich. Writing this book has been an incredible journey
and I wish to thank my supervisor Prof. Matthias Oesch for all the support I received
over the years. His academic guidance, diligent advice, and encouraging words were
a steady constant through the ups and downs of finishing my dissertation. I would
also like to thank Prof. Christine Kaufmann for preparing the second opinion on this
dissertation. The Faculty of Law of the University of Zurich accepted my disserta-
tion in 2021 with the predicate summa cum laude.
The research for this book was partly funded with scholarships from the League
of European Research Universities, the Swiss National Science Foundation, and the
Europe Institute at the University of Zurich. I am grateful for the opportunities
provided by these scholarships. I would also like to thank Prof. Xavier Groussot
for hosting me at Lund University; Dr. Kristina Irion for welcoming me at the
Institute for Information Law at the University of Amsterdam; Prof. Eyal Benvenisti
for hosting me at the Lauterpacht Centre for International Law at the University of
Cambridge; and Jane Harman for inviting me to the Woodrow Wilson Center for
International Scholars in Washington D.C.
It would have been impossible for me to write this book without the support I
received from colleagues, friends, and family, some of whom I would like to
mention here. Prof. Anupam Chander at Georgetown Law and Dr. Thomas Streinz
at NYU Law for their inspiring discussions on data protection and trade law;
Dr. Zachary Reyna for a meticulous job editing this book; Dr. Anja Trautmann
from Springer for guiding me through the intricacies of the publishing process, the
research associates at the University of Zurich and the Lauterpacht Centre—in
particular, Dr. Rika Koch and Dr. Nina Hadorn—for their company on this journey;
my friends for all the distractions along the way; and my sister for always having my
back. A very special thanks goes to Dr. Barbara Kammermann. Her love and
patience gave me the strength and capacity to see this project through.

vii
viii Acknowledgments

Finally, I wish to thank my parents. Their support and uncompromising faith in

me have allowed me to follow a path that was not open to them. This book is
dedicated to them.

Zurich, Switzerland Tobias Naef

2022
Contents

1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1 Framing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 Questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.3 Structure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
1.4 Method . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Part I European Union Data Protection Law

2 The Global Reach of the Right to Data Protection . . . . . . . . . . . . . . 19
2.1 Development of the Right to Data Protection . . . . . . . . . . . . . . . . 20
2.1.1 Early Data Protection Laws . . . . . . . . . . . . . . . . . . . . . . . 20
2.1.2 Materialization in International Instruments . . . . . . . . . . . . 22
2.1.3 Harmonization in Community Law . . . . . . . . . . . . . . . . . . 25
2.1.4 Inclusion in the Charter of Fundamental Rights . . . . . . . . . 27
2.1.5 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
2.2 Substance of the Right to Data Protection . . . . . . . . . . . . . . . . . . . 31
2.2.1 Foundational Values . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
2.2.2 Written Constituents of the Right to Data Protection . . . . . 38
2.2.3 Relationship with the Right to Private Life . . . . . . . . . . . . 42
2.2.4 Limitations on the Right to Data Protection . . . . . . . . . . . . 47
2.2.5 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
2.3 The Extraterritorial Dimension of the Right to Data Protection . . . . 55
2.3.1 The Right to Continuous Protection of Personal Data . . . . . 55
2.3.2 Theory of Territorial Extension of Union Law . . . . . . . . . . 63
2.3.3 Justification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
2.3.4 Essential Equivalence . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
2.3.5 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
2.4 The Extraterritorial Dimension of the Right to Data Protection
and Foreign Surveillance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
2.4.1 Foreign Internet Surveillance . . . . . . . . . . . . . . . . . . . . . . 77
ix
x Contents

2.4.2 Requirements for Essential Equivalence of Protection from

Internet Surveillance . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
2.4.3 No Double Standards for Foreign Internet Surveillance . . . 91
2.4.4 International Human Rights Law and Internet
Surveillance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
2.4.5 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100
2.5 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
3 The Restrictive Effect of the Legal Mechanisms for Data Transfers
in the European Union . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115
3.1 The System of Data Transfers . . . . . . . . . . . . . . . . . . . . . . . . . . . 115
3.1.1 Development of the Rules on Data Transfers . . . . . . . . . . . 116
3.1.2 Policy Objectives of the Rules on Data Transfers . . . . . . . . 129
3.1.3 The Concept of Data Transfers . . . . . . . . . . . . . . . . . . . . . 135
3.1.4 Legal Mechanisms for Data Transfers . . . . . . . . . . . . . . . . 146
3.1.5 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155
3.2 Continuous Protection of Personal Data and Adequacy
Decisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155
3.2.1 The Politics of Adequacy Decisions . . . . . . . . . . . . . . . . . 156
3.2.2 Limitations on Continuous Protection of Personal Data
Using Adequacy Decisions . . . . . . . . . . . . . . . . . . . . . . . . 161
3.2.3 The Validity of Adequacy Decisions as a Legal
Mechanism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 176
3.2.4 The European Commission as Guardian of Fundamental
Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 178
3.2.5 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 178
3.3 Continuous Protection of Personal Data and Appropriate
Safeguards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 179
3.3.1 The Politics of Appropriate Safeguards . . . . . . . . . . . . . . . 179
3.3.2 Limitations on Continuous Protection of Personal Data
Using Appropriate Safeguards . . . . . . . . . . . . . . . . . . . . . 185
3.3.3 The Validity of Appropriate Safeguards as a Legal
Mechanism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193
3.3.4 Supervisory Authorities as Guardians of Fundamental
Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 202
3.3.5 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 204
3.4 Continuous Protection of Personal Data and Derogations . . . . . . . . 204
3.4.1 The Politics of Derogations . . . . . . . . . . . . . . . . . . . . . . . 205
3.4.2 Limitations on Continuous Protection of Personal Data
with the Derogations . . . . . . . . . . . . . . . . . . . . . . . . . . . . 207
3.4.3 Waiver on Continuous Protection for Personal Data . . . . . . 214
3.4.4 The Data Subjects as Guardians of Fundamental Rights . . . 219
3.4.5 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 220
3.5 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 221
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 222
Contents xi

Part II International Trade Law

4 Restrictions on Data Transfers and the WTO . . . . . . . . . . . . . . . . . . 233
4.1 Data Flows and Trade in Digital Services . . . . . . . . . . . . . . . . . . . 233
4.1.1 Trade in Digital Services . . . . . . . . . . . . . . . . . . . . . . . . . 234
4.1.2 Data Localization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 235
4.1.3 Services with Systematic Flows of Personal Data . . . . . . . . 237
4.1.4 Services with Occasional Flows of Personal Data . . . . . . . . 240
4.1.5 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 241
4.2 Data Flows and the Law on Trade in Services . . . . . . . . . . . . . . . 242
4.2.1 General Agreement on Trade in Services . . . . . . . . . . . . . . 242
4.2.2 Annex on Telecommunications . . . . . . . . . . . . . . . . . . . . . 262
4.2.3 Treatment of Digital Services . . . . . . . . . . . . . . . . . . . . . . 266
4.2.4 Electronic Commerce Negotiations . . . . . . . . . . . . . . . . . . 284
4.2.5 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 289
4.3 The Regulation of Data Transfers as Trade Barrier . . . . . . . . . . . . 290
4.3.1 MFN Treatment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 290
4.3.2 Domestic Regulation . . . . . . . . . . . . . . . . . . . . . . . . . . . . 296
4.3.3 Market Access . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 307
4.3.4 National Treatment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 317
4.3.5 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 323
4.4 The Regulation of Data Transfers as a Justifiable Trade Barrier . . . 324
4.4.1 Economic Integration Exception . . . . . . . . . . . . . . . . . . . . 325
4.4.2 Security Exceptions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 329
4.4.3 Confidentiality Exception . . . . . . . . . . . . . . . . . . . . . . . . . 330
4.4.4 General Exceptions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 331
4.4.5 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 352
4.5 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 353
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 355
5 Restrictions on Data Transfers and Trade Agreements . . . . . . . . . . . 367
5.1 Data Flow Clauses in Trade Agreements . . . . . . . . . . . . . . . . . . . 367
5.1.1 Development in EU Trade Agreements . . . . . . . . . . . . . . . 368
5.1.2 Development in the Mega-Regional Trade Agreements . . . 373
5.1.3 Development in US Trade Agreements . . . . . . . . . . . . . . . 378
5.1.4 Development in Non-EU/US Trade Agreements . . . . . . . . 382
5.1.5 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 386
5.2 Legal Requirements for Data Flow Clauses in EU Trade
Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 387
5.2.1 Respecting the Primacy of Fundamental Rights Over
International Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 387
5.2.2 Accommodating the Legal Mechanisms for Data
Transfers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 390
5.2.3 Including Cooperation for the Protection
of Personal Data . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 393
xii Contents

5.2.4 Banning Other Data Localization Obligations . . . . . . . . . . 396

5.2.5 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 398
5.3 Designs for Data Flow Clauses in EU Trade Agreements . . . . . . . 399
5.3.1 Data Flow Obligation with a Data Protection Exception . . . 399
5.3.2 Data Flow Obligation with an Adequacy Exception . . . . . . 402
5.3.3 Data Flow Obligation with an Adequacy Condition . . . . . . 403
5.3.4 Data Flow Obligation with Data Protection Obligations . . . 404
5.3.5 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 405
5.4 The Model Data Flow Clauses for EU Trade Agreements . . . . . . . 406
5.4.1 Addressing Data Protection as a Fundamental Right . . . . . . 407
5.4.2 Banning Data Localization Requirements . . . . . . . . . . . . . 408
5.4.3 Carving-Out Space for the Regulation of Data
Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 410
5.4.4 Rejecting Regulatory Cooperation for Data Protection . . . . 411
5.4.5 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 413
5.5 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 414
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 416

Part III Epilogue

6 Concluding Remarks: Data Protection Without Data
Protectionism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 423
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 428

About the Author . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 431

List of Abbreviations

AA Association Agreement
AB Appellate Body
AG Advocate General
ARIO Draft Articles on the Responsibility of International Organizations
ASD Australian Signals Directorate
BCR Binding Corporate Rules
BDSG Bundesdatenschutzgesetz
BEUC Bureau Européen des Unions de Consommateurs
BILETA British and Irish Law Education Technology Association
BND Bundesnachrichtendienst
BVerfGE Bundesverfassungsgericht
CARIFORUM Caribbean Forum
CBC Canadian Broadcasting Corporation
CCIN Commission de Contrôle des Informations Nominatives
CETA EU-Canada Comprehensive Economic and Trade Agreement
CFR, Charter Charter of Fundamental Rights of the European Union
CIA Central Intelligence Agency
CNIL Commission Nationale de l’Informatique et des Libertés
CoE Council of Europe
Cp. Compare
CPCprov Provisional Central Product Classification
CPTPP Comprehensive and Progressive Agreement for the Trans-Pacific
Partnership
CRID Research Centre on IT and Law
CRS Congressional Research Service
CTIVD Dutch Review Committee for Intelligence and Security Services
DisCo Disruptive Competition Project
DPA Data Protection Authority
DPC Data Protection Commissioner
DPD Data Protection Directive

xiii
xiv List of Abbreviations

DRD Data Retention Directive

DSK Datenschutzkonferenz der Datenschutzbeauftragten des Bundes
und der Länder
DSU Dispute Settlement Understanding
EC European Communities
ECHR European Charter of Human Rights
ECIPE European Centre for International Political Economy
ECJ European Court of Justice
ECtHR European Court of Human Rights
ed./eds Editor/s
EDPB European Data Protection Board
EDPS European Data Protection Supervisor
EEA European Economic Area
EESC European Economic and Social Committee
EGC General Court of the European Union
EO Executive Order
EPA Economic Partnership Agreement
ESF European Services Forum
et al. et alteris, and others
ETS European Treaty Series
EU European Union
FAQ Frequently Asked Questions
FISA Foreign Intelligence Surveillance Act
fn. footnote
FRA European Union Agency for Fundamental Rights
FTC Federal Trade Commission
GATS General Agreement on Trade in Services
GATT General Agreement on Tariffs and Trade
GCHQ Government Communications Headquarters
GDPR General Data Protection Regulation
GMO Genetically Modified Organism
GNS Group of Negotiations on Services
GUE/NGL European United Left/Nordic Green Left
HM Her Majesty’s
HRC Human Rights Committee
i.e. id est, in other words
IaaS Infrastructure as a Service
IAPP International Association of Privacy Professionals
Ibid. ibidem, in the same place
ICC International Chamber of Commerce
ICCPR International Covenant on Civil and Political Rights
ICJ International Court of Justice
ICO Information Commissioner’s Office
ICTSD International Centre for Trade and Sustainable Development
List of Abbreviations xv

IDB Inter-American Development Bank

IHC Irish High Court
IIF Institute of International Finance
ILC International Law Commission
IMCO European Parliament Committee on the Internal Market and
Consumer Protection
IMF International Monetary Fund
IO International Organizations
IoT Internet of Things
IP Internet Protocol
ISP Internet Service Provider
IT Information Technology
ITA Information Technology Agreement
ITIF The Information Technology & Innovation Foundation
ITU International Telecommunication Union
IvIR Institute for Information Law
JEEPA EU-Japan Economic Partnership Agreement
KORUS US-Korea Free Trade Agreement
LIBE European Parliament Committee on Civil Liberties, Justice and
Home Affairs
MERCOSUR Mercado Común del Sur
MFN Most-favored nation
NAFTA North American Free Trade Agreement
noyb none of your business
NSA National Security Agency
NYT The New York Times
OCT Overseas Countries and Territories
OECD Organization for Economic Cooperation and Development
OED Oxford English Dictionary
OJ Official Journal of the European Union
OMR Outermost Regions
PaaS Platform as a Service
para. Paragraph
paras Paragraphs
PCLOB Privacy and Civil Liberties Oversight Board
PIIE Peterson Institute for International Economics
PNR Passenger Name Records
PPD Presidential Policy Directive
RDV Recht der Datenverarbeitung
RGF Really Good Friends
RGPD Règlement Général sur la Protection des Données
SaaS Software as a Service
SARK Swedish Ministry of Defense Committee on the Vulnerability of
Computer Systems
xvi List of Abbreviations

SORM Systema Operativno-Rozysknikh Meropriatiy, System of

Operative Search Measures
SWIFT Society for Worldwide Interbank Financial Telecommunications
TCP Transmission Control Protocol
TEU Treaty on European Union
TFEU Treaty on the Functioning of the European Union
TiSA Trade in Services Agreement
TNC Trade Negotiations Committee
TTIP Transatlantic Trade and Investment Partnership
TPP Trans-Pacific Partnership
UCLA University of California
UK United Kingdom
UN United Nations
UNCTAD United Nations Conference on Trade and Development
UNGA United Nations General Assembly
UNTS United Nations Treaty Series
US United States
USITC United States International Trade Commission
USMCA United States-Mexico-Canada Agreement
USTR United States Trade Representative
VCLT Vienna Convention on the Law of Treaties
W/120 Service Sectoral Classification List
WP Working Party
WTO World Trade Organization
Chapter 1
Introduction

1.1 Framing

Data protection is an area where fundamental rights collide with trade policy.
Personal data has become an essential asset for the digital economy.1 Consequently,
the free flow of personal data across borders has been described as a “new battle-
ground” for states trying to protect their vital economic and non-economic
interests—especially now that trade negotiations are shifting to digital trade.2
The conflict over data protection and trade first crystallized in the transatlantic
relations between Europe and the United States (US). From the outset, the US has
been concerned with trade barriers erected by rules regulating the cross-border flow
of personal data in European countries. As early as 1978, the Director of the White
House Office of Telecommunications Policy, John Eger, wrote that “there is the
danger, of course, that these new laws will be used not only to protect just privacy
but also to protect domestic economic interests.”3 As efforts to harmonize data
protection within the European Communities (EC) progressed, the US rhetoric
about its motives has been ratcheted up.4 Ira Magaziner, who was responsible for
electronic commerce issues in the administration of US President Bill Clinton, stated
in 1998 that “we in the U.S. don’t recognize an extraterritorial attempt to shut down

1
See UNCTAD (2019), pp. 29–30, for a description of the monetization of personal data including
cross-border data flows.
2
Burri (2017b), p. 408. The Financial Times referred to “EU trade data flows” as the new GMOs,
referring to a long-lasting and high-profile trade dispute between the US and the EC over the
European moratorium on the approval of genetically modified biotech products. See Beatie (2017).
3
Eger (1979), p. 1066.
4
Bennett and Raab (2006), p. 87; Madsen (1992), p. 26.

© The Author(s) 2023 1

T. Naef, Data Protection without Data Protectionism, EYIEL Monographs - Studies
in European and International Economic Law 28,
https://doi.org/10.1007/978-3-031-19893-9_1
2 1 Introduction

the electronic flow of data between countries. According to the principles of inter-
national trade, I think that’s a violation of WTO rules.”5
Spiros Simitis––one of the pioneers of European regulatory policy in the field of
data protection and the first titled “data protection officer”––famously countered
these allegations in an interview with the New York Times in 1999 by referring to
another high-profile trade dispute between the US and the EC over the European
banana import regime: “Americans still have the illusion that they can change the
[data protection] directive, but they can’t . . . This is not bananas we are talking
about . . . This is about what we consider a fundamental claim to privacy, and
therefore there is a limit to compromise.”6 Nevertheless, US political attacks on
EU data protection has not subsided, even after Edward Snowden revealed in 2013
the extent of US mass surveillance.7 In the runup to the adoption of the General Data
Protection Regulation (GDPR)8 in 2016, US President Barack Obama said in an
interview with Re/code that EU “roadblocks” for cross-border flows of personal data
to the US are not always entirely sincere because European countries intend to
displace US companies with European companies.9 In essence, the US narrative has
always been that EU data protection rules are a form of data protectionism.10
In spite––or maybe because––of this, the EU began to express disapproval of
impediments to the free flow of data across borders.11 EU Commissioner for Trade
Cecilia Malström noted in 2016 that “in the digital age, restrictions on cross-border
data flows inhibit trade of all kinds, and may amount to ‘digital protectionism’.”12
However, the EU’s opposition to digital or data protectionism is on a wholly

5
See Shaffer (2000), p. 56; Farrell (2002), p. 116; Swire and Litan (1998), p. 189, who refer to
comments of Ira Magaziner at a conference of the Brookings Institution and the Cato Institute on
6 February 1998 as reported by Declan McCullagh for the Netly News.
6
The remark is cited in Edmund (1999) [emphasis added].
7
The journalists Glenn Greenwald, Ewen MacAskill, Barton Gellman and Laura Poitras broke the
story on 7 June 2013. See Greenwald and MacAskill (2013); Gellman and Poitras (2013).
8
Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the
protection of natural persons with regard to the processing of personal data and on the free
movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation)
[2016] OJ L 119/1.
9
Kara Swisher Interviews President Barack Obama on Cyber Security, Privacy and His Relation-
ship With Silicon Valley. Swisher (2015).
10
Aaronson (2019), pp. 557–562; Schwartz and Pfeifer (2017), p. 118; Farrell and Newman (2016);
Aaronson (2015), p. 674; USITC (2013), pp. 5-1, 5-2. However, there are other voices as well in the
US. Former Commissioner of the FTC Julie Brill stated that “in some quarters in the United States,
there has been suspicion that discussions about privacy in Europe were veiled attempts at protec-
tionism. I believe the Schrems decision should put those suspicions to rest. The decision crystallizes
what has been clear—or should have been clear—for a long time about privacy in Europe: it is a
fundamental right that Europeans and their Court take very seriously.” Brill (2015), p. 4.
11
In a communication on digital trade from 2015, the European Commission contended that
“European companies still face significant barriers around the world, such as non-transparent
rules, government interference, unjustified data localization and data storage requirements.”
European Commission (2015), p. 7.
12
European Commission (2016).
1.1 Framing 3

different trajectory than its regard for the fundamental right to data protection. The
European Commission has been careful to exclude its data protection regime from a
protectionism narrative. In a communication from 2017 on exchanging and
protecting personal data in a globalized world, the Commission highlighted that
“European companies operating in some third countries are increasingly faced with
protectionist restrictions that cannot be justified with legitimate privacy consider-
ations.”13 Nonetheless, this reference to “legitimate considerations” highlights that
even from a European perspective, privacy and data protection are sometimes used
as a disguise for protectionist policies.14 In the end, while many states recognize, at
least on paper, that data protection and privacy are important values, they diverge
quite jarringly on what the correct level or design of such protection should be.15
There is a deep disagreement about when data protection should be considered data
protectionism. This research explores EU-style data protection, its application to
cross-border flows of personal data, and its consequences.
The key to legally explaining the conflict over data protection and trade in the EU
is the right to data protection enshrined in Article 8 Charter of Fundamental Rights
(Charter, CFR).16 This research provides a new account of the right to data protec-
tion with regard to cross-border flows of personal data. Crucially, the right to data
protection has an extraterritorial dimension that is independent from the legal data
transfer mechanisms provided by secondary Union law. I suggest that there is an
unwritten constituent part of the right to data protection in Article 8 CFR, which
mandates continuous protection of all personal data transferred from the EU to third
countries. This extraterritorial dimension of the right to data protection also requires
a new investigation of the restrictions placed on the free flow of personal data by
the EU.
Even if restrictions on the free flow of personal data are deeply rooted in the
protection of fundamental rights, they can still constitute barriers to international
trade as regulated by the World Trade Organization (WTO). So far, data protection
has not been subject to dispute settlement proceedings at the WTO. Consequently,
this research also provides a precise legal assessment of the EU’s fundamental
rights-based regulation of data transfers and its resulting restrictions on cross-border
flows of personal data in a hypothetical challenge at the WTO. I argue that the scope
for regulating data protection in accordance with WTO law is wider than expected
from the previous jurisprudence of the WTO’s adjudicative bodies on other public
policy objectives.17 Nevertheless, I also show that even a delicately crafted and rule-

13
European Commission (2017), p. 3.
14
See Burri (2017b), p. 448; Chander and Le (2015), p. 448.
15
Yakovleva (2020), p. 476; Schwartz and Peifer (2017), pp. 178–179; Aaronson (2015),
pp. 682–683.
16
Charter of Fundamental Rights of the European Union [2012] OJ C 326/391.
17
So far, only one of all the cases that reached the adjudicative stage of WTO dispute settlement
satisfied all the standards of the general exceptions. See WTO Panel Report, EC – Asbestos,
para. 8.240; cp. Public Citizen (2015), pp. 5–6.
4 1 Introduction

based system of data transfers must be carefully managed in order to comply with the
rules of the WTO.
Given its importance for digital trade, the free flow of personal data across
borders is the subject of multiple, current negotiations in international trade law.18
While multilateral trade negotiations at the WTO move slow and compromise is
increasingly more difficult, bilateral and regional trade agreements have become an
important forum in which topics such as cross-border flows of personal data can be
addressed. Indeed, bilateral and regional trade agreements have compensated in
several ways the lack of progress at the WTO.19 The challenge for the EU is to
safeguard its fundamental rights-based regulation of data transfers in these negoti-
ations. This research also explores and offers the legal requirements for a data flow
clause in EU trade agreements. I ultimately suggest four possible designs for such a
data flow clause in EU trade agreements. All in all, the intention of this research is to
show—using the example of EU law—where the line between data protection and
data protectionism in international trade law currently is, and how it can, or should
be redrawn.

1.2 Questions

The right to data protection in Article 8 CFR has been in force since 2009. Many
aspects of this innovative fundamental right have yet to be extensively explored.20
One of the topics that has received little attention to date is the relationship between
the right to data protection in Article 8 CFR and cross-border flows of personal data.
The existing research is often limited to short explanations of how the legal mech-
anisms for the transfer of personal data in the GDPR, or its predecessor Directive
95/46/EC,21 should be interpreted in light of Article 8 CFR.22 Commentaries on the
Charter do not usually address the implications of the right to data protection for the
cross-border free flow personal data.23 Consequently, the first question this research

18
On 25 January 2019, 76 members of the WTO started negotiations on electronic commerce. See
WTO (2019). The parties to these negotiations include countries that have different domestic policy
priorities and approaches to data protection. Sen (2018), pp. 339–341.
19
Burri (2017a), p. 101.
20
González Fuster (2014), p. 205.
21
Directive 95/46/EC of the European Parliament and Council of 24 October 1995 on the protection
of individuals with regard to the processing of personal data and on the free movement of such data
[1995] OJ L 281/31.
22
See, e.g., Kuner (2020), p. 757, 802; Drechsler (2019), para. 10; Wagner (2018), p. 323.
23
See Riesz (2019), pp. 196–224; Knecht (2019), pp. 3392–3394; Johlen (2016), pp. 214–223;
Kranenborg (2014), pp. 241–259; Bernsdorff (2014), pp. 243–249; the issue is briefly addressed by
Tinière (2018), pp. 198–199; but cp. Lock (2019a), p. 2126.
1.2 Questions 5

seeks to answer is: Does the right to data protection in Article 8 CFR protect
individuals in the EU in cases in which their personal data is transferred to third
countries for processing?
The second research question focuses on the effect of the protection afforded by
the right to data protection in Article 8 CFR for cross-border flows of personal data.
Chapter V GDPR includes multiple different legal mechanisms for enabling the
transfer of personal data to third countries. These include: adequacy decisions from
the European Commission according to Article 45 GDPR, instruments providing
appropriate safeguards in Article 46 GDPR, and the derogations in Article 49 GDPR.
The use of these mechanisms must fully incorporate the protection afforded by
Article 8 CFR, which can lead to restrictions on the free flow of personal data
from the EU to third countries. The research question is thus what kind of restrictions
are imposed on cross-border flows of personal data because of Article 8 CFR and the
legal mechanisms for data transfers in Chapter V GDPR?
The conflict over data protection and trade is not new. Both data protection law
and WTO law have been around for more than 20 years. The coexistence of these
two legal disciplines has been subject so some scholarly debate.24 However, little
attention has been paid to the intricacies of EU-style data protection. It mostly circled
around the now defunct Safe Harbor Agreement between the EU and the US.25
Corresponding to the rising prominence of data protection law, the issue has been
taken up more frequently in recent years.26 Nevertheless even here, the importance
of the fundamental right to data protection in Article 8 CFR has not been sufficiently
analyzed in the EU regulation of data transfers as the subject of the analysis under
WTO law. The third research question thus relates to the coexistence of EU data
protection law and WTO law on trade in services: Is the fundamental rights-based
regulation of data transfers in the EU compatible with the obligations of WTO
members in the General Agreement on Trade in Services (GATS)?27
The fourth and final research question addresses the coexistence of EU data
protection law and data flow clauses in bilateral and regional trade agreements.
The inclusion of provisions regulating the cross-border flow of personal data in trade
agreements has not yet been studied systematically. The issue is usually mentioned
briefly as part of explanations of the challenges for the regulation of digital trade in
bilateral and regional trade agreements, but the discussion is minimal.28 Some

24
Peng (2011), pp. 756–757; Wunsch-Vincent (2008), pp. 504–505, 518; Shaffer (2000),
pp. 46–54; Bloss (2000), pp. 654–660; Swire and Litan (1998), pp. 189–196.
25
Shapiro (2003), pp. 2782–2783; Perez Asinari (2003), pp. 3–5; Reidenberg (2001), pp. 737–739.
26
Velli (2019), pp. 884–889; Ruotolo (2018), pp. 21–28; Saluzzo (2017), p. 819; Yakovleva and
Irion (2016), pp. 202–207; Irion et al. (2016), pp. 26–39; Weber (2012), pp. 36–39; Reyes (2011),
pp. 13–34; Keller (2011), pp. 352–353; with regard to Korean data protection law MacDonald and
Streatfield (2014), pp. 629–650.
27
General Agreement on Trade in Services of 15 April 1994, Marrakesh Agreement Establishing
the World Trade Organization, Annex 1B, 1869 UNTS 183.
28
Gasser and Palfrey (2012), p. 145; Meltzer (2019), pp. 43–46; Wu (2017), pp. 22–24; Burri
(2017a), pp. 106–110.
6 1 Introduction

examples include: studies that briefly discuss the difficulties of including data
protection in trade agreements;29 studies addressing regulatory cooperation for the
protection of personal data in trade agreements;30 and studies that focus on the
different positions during the negotiations of the so-called “mega-regional trade
agreements” such as the Transatlantic Trade and Investment Partnership (TTIP),
the Trade in Services Agreement (TiSA) or the Trans-Pacific Partnership (TPP).31
Yet, there has been no analysis of the legal requirements for data flow clauses
included in EU trade agreements and there have been no alternative suggestions
for the design of such clauses. In addition, the EU horizontal model data flow
clauses, which the European Commission endorsed in 2018, have not been the
subject of much scientific debate either.32 The final research question is thus how
the fundamental rights-based regulation of data transfers in the EU can be accom-
modated in the bilateral and regional trade agreements of the EU?

1.3 Structure

In terms of the structure, this book consists of two main parts. The first part is
dedicated to EU data protection law while the second part covers international trade
law. The two parts are both further divided into two main chapters each (plus
a preliminary chapter in the form of this introduction and a final chapter in the
form of an epilogue). The four main chapters each address one of the four research
questions raised above.
Chapter Two discusses the global reach of the right to data protection in
Article 8 CFR. It outlines the substance of the right to data protection and introduces
the extraterritorial dimension of this fundamental right as an unwritten constituent
part of Article 8 CFR. The chapter then focuses on foreign internet surveillance,
which is the most important field of application for the extraterritorial dimension of
the right to data protection. Chapter Three explores the restrictions imposed on
cross-border flows of personal data by the EU. It describes the legal mechanisms
for the transfer of personal data in the GDPR and sets out how the extraterritorial
dimension of the right to data protection must be applied to the three legal mecha-
nisms set out in the GDPR. Chapter Four assesses the compatibility of the EU’s
fundamental rights-based regulation of data transfers with WTO law. The chapter
explains why international trade in services requires cross-border flows of data,
and––against this background––shows where the regulation of data transfers in the

29
Willemyns (2020), pp. 237–238; Wolfe (2019), pp. 79–81; Yakovleva (2018), pp. 487–499;
Berka (2017), pp. 185–186; Branstetter (2016), p. 321; Yijun (2016), pp. 387–389; Greenleaf
(2018), pp. 203–212.
30
Mancini (2020), pp. 192–203; Irion (2018), pp. 9–11.
31
Streinz (2019), pp. 330–340; Berka (2017), pp. 176–182; Park (2017), pp. 363–370.
32
Yakovleva (2020), pp. 494–496; Streinz (2019), p. 336; Velli (2019), pp. 890–893.
1.4 Method 7

EU constitutes a trade barrier, and whether such barriers can be justified according to
the GATS. Finally, Chapter Five investigates how data flow clauses can be inte-
grated in EU bilateral and regional trade agreements. The chapter offers four
suggestions for the design of data flow clauses that entail a commitment to the
cross-border flow of personal data while respecting the EU’s fundamental rights. The
chapter also criticizes the horizontal data flow clauses that were adopted by the
European Commission in 2018 as a model for future trade agreements of the
EU. Chapter Six concludes the book with an epilogue.

1.4 Method

The book applies the doctrinal legal research method.33 This method can be defined
as “research which provides a systematic exposition of the rules governing a
particular legal category, analyses the relationship between rules, explains areas of
difficulty and, perhaps, predicts future developments.”34 In practice, the analysis of
the case law of the competent courts and adjudicative bodies is of the utmost
importance. In the field of EU law, the relevant case law primarily comes from the
European Court of Justice (ECJ). The opinions of the Advocates General (AG),
which are produced before the ECJ makes its decision and serve as an orientation for
the Court, are also crucial.35 AG opinions often provide further analysis of the legal
issues at stake and provide valuable insights for doctrinal legal research.36 Where
necessary, the case law of the European Court of Human Rights (ECtHR) is also
taken into account. The ECtHR deals with data protection––in the absence of a
specific right to data protection enshrined in the European Convention of Human
Rights (ECHR)37––under the right to private life in Article 8 ECHR.38 The case law
on Article 8 ECHR of the ECtHR is relevant for EU law because the Charter contains
an identical right to private life in Article 7 CFR. According to Article 52(3) CFR, as
long as the Charter contains rights that correspond to rights guaranteed by the
ECHR, then the meaning and scope of those rights should be the same as those
laid down by the ECHR.39 In the field of international trade law, the relevant case

33
For an overview of the doctrinal legal research method see Bhat (2020), pp. 143–168; Hutchinson
and Duncan (2012), pp. 110–119; Smits (2017), pp. 207–228.
34
Hutchinson and Duncan (2012), p. 101.
35
See for the role of AG opinions Albors-Llorens (2020), pp. 284–285; Schütze (2018), p. 206;
Craig and de Búrca (2017), p. 61; Solanke (2015), pp. 113-116; Dashwood et al. (2011), p. 62.
36
Albors Llorens (2020), p. 284; Solanke (2015), p. 115.
37
Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1953,
ETS 5, 213 UNTS 221.
38
See, e.g., ECtHR, Amann v. Switzerland, para. 56; ECtHR, S. and Marper v. the United Kingdom,
para. 103; Lynskey (2014), pp. 581–587; Kokott and Sobotta (2013), p. 223.
39
Lock (2019b), pp. 2255–2256; Schütze (2018), pp. 466–468; Craig and de Búrca (2017), p. 398;
Solanke (2015), pp. 258–259.
8 1 Introduction

law comes from WTO panels and the Appellate Body (AB). It must be noted,
however, that the reports of WTO panels and the AB are only legally binding on
the parties involved in the litigation and do not constitute binding precedents for
other disputes, even if the same question of WTO law arises in the future.40 In short,
there is no rule of stare decisis in WTO dispute settlement that can bind the
adjudicative bodies in subsequent cases.41 Nevertheless, the AB has underlined
that the fact that AB reports are only legally binding on the parties to a dispute
“does not mean that subsequent panels are free to disregard the legal interpretations
and the ratio decidendi contained in previous Appellate Body reports.”42 The reports
of WTO panels and the AB therefore provide relevant guidance to address the
research question concerning WTO law.
Where the meaning of rules must be determined in this book, the appropriate
instruments for interpreting the law are applied. In the interpretation of EU law, the
four classical methods of interpretation can be used: historical interpretation, literal
interpretation, systematic interpretation, and teleological interpretation.43 The ECJ
emphasizes that “in interpreting a provision of EU law, it is necessary not only to
refer to its wording but also to consider its context and the objectives of the
legislation of which it forms part, and in particular the origin of that legislation.”44
There is no formal hierarchy among the methods of interpretation in EU law, but it is
evident from the case law of the ECJ and extrajudicial writings of AGs and judges of
the ECJ that the Court often gives high importance to teleological considerations.45
The importance of teleological interpretation for EU law is reflected in this book.
The interpretation of terms in international law follows the customary rules of
interpretation in Article 31 and Article 32 Vienna Convention on the Law of Treaties
(VCLT).46 In the realm of WTO law, Article 3.2 Dispute Settlement Understanding
(DSU) refers to these customary rules of interpretation.47 Article 31(1) VCLT pro-
vides the general rule of interpretation and requires that a treaty must be interpreted
in good faith in accordance with the ordinary, contextual meaning of the terms of the

40
Van Damme (2009), p. 197.
41
Matsushita et al. (2015), pp. 89–90.
42
WTO AB Report, US – Stainless Steel (Mexico), para. 158.
43
Lenaerts and Gutiérrez-Fons (2014), p. 6; Schütze (2018), p. 211; Itzcovich (2009), pp. 539–540.
In addition, Albertina Albors Llorens describes the comparative method of interpretation in the
EU. See Albors Llorens (1999), p. 375, 380.
44
ECJ, La Quadrature du Net, para. 105.
45
See former ECJ judge Pescatore (1972), p. 325; former AG Fennelly (1996), p. 664; ECJ judge
Lenaerts and Gutiérrez-Fons (2014), p. 36; see also Schütze (2018), p. 212; Albors Llorens
(1999), p. 382.
46
Vienna Convention on the Law of Treaties of 23 May 1969, 1155 UNTS 331.
47
Understanding on the Rules and Procedures Governing the Settlement of Disputes of 15 April
1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 2, 1869 UNTS
401. See Van den Bossche and Zdouc (2017), pp. 190–198; Matsushita et al. (2015), pp. 63–87.
1.4 Method 9

treaty and in the light of the treaty’s object and purpose.48 Article 32 VCLT states
that recourse to supplementary means of interpretation, including the preparatory
work of the treaty and the circumstances of its conclusion, may be used when the
interpretation according to Article 31 VCLT leaves the meaning ambiguous or
obscure, or leads to a result which is manifestly absurd or unreasonable.49 While
the purpose, or teleology of the law, is of paramount importance for the interpreta-
tion of EU law, a sovereignty-oriented reading with a focus on the literal interpre-
tation is essential in international law.50 That does not mean, however, that the
interpretation of WTO law does not offer any flexibility for new developments. The
AB specifically held that
WTO rules are not so rigid or so inflexible as not to leave room for reasoned judgments in
confronting the endless and ever-changing ebb and flow of real facts in real cases in the real
world. They will serve the multilateral trading system best if they are interpreted with that in
mind.51

This book critically examines the essential features of the legal rules in question and
the corresponding case law to provide alternative interpretations of those rules where
appropriate, and then to combine and synthesize the relevant elements to establish an
arguably correct and complete statement of the law.52 In addition, three methodo-
logical specifics deserve mention:
First, the right to data protection in Article 8 CFR is examined in the context of
the historical development of legal data protection in Europe. Here, the project
benefits significantly from the research by Gloria González Fuster, whose work
has described the emergence of personal data protection as a fundamental right of the
EU in great detail.53 Given this historical context, the need for an interpretation of
this fundamental right in the light of technological developments becomes apparent.
This need can also be found in the Preamble of the Charter. An interpretation in the
light of technological developments is of central importance for the construction of
the extraterritorial dimension of the right to data protection. In the age of the internet,
when personal data flows across territorial borders on an unprecedented scale, this
need is even more important. Furthermore, this book identifies the underpinning
values of data protection and shows that they are equally applicable to the protection
of personal data in a transnational context.

48
See generally Dörr (2018a), pp. 559–616; Sorel and Boré Eveno (2011), pp. 804–837; Villiger
(2009), pp. 415–441.
49
See generally Dörr (2018b), pp. 617–633; le Bouthillier (2011), pp. 841–837; Villiger (2009),
pp. 442–449.
50
Ammann (2020), pp. 199–202; Gardiner (2015), pp. 181–196; Van Damme (2009), pp. 221–235;
Fernández de Casadevante y Rom (2007), pp. 37–38.
51
WTO AB Report, Japan – Alcoholic Beverages II, paras 122–123.
52
Cp. Hutchinson (2018), p. 13.
53
See particularly the research on the surfacing of national norms on data processing in Europe.
González Fuster (2014), pp. 55–71.
10 1 Introduction

Second, this research conducts a fundamental rights compatibility analysis of data

transfers based on the different legal mechanisms in Chapter V GDPR. This analysis
demonstrates and explains the restrictions that are required by the EU on cross-
border flows of personal data from the perspective of fundamental rights. The
requirements for limitations on fundamental rights in EU law can be found in Article
52(1) CFR:
Any limitation on the exercise of the rights and freedoms recognised by this Charter 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 Union or the need to protect
the rights and freedoms of others.54

The analysis offered in this book is more detailed than the analysis by the ECJ in the
data transfer case Schrems 2.55 An important difference with the analysis of the ECJ
results from my argument that the interference with the right to data protection in
Article 8 CFR should be legally located in the EU when personal data is transferred
to a third country, rather than in the rules, measures, and actions of the third
countries.56 This changes the analysis insofar as the interference with the right to
data protection––i.e., the transfer of personal data in question––cannot be justified
with the same objectives of general interest or the same need to protect the rights and
freedoms of others as is possible when the interference is found, for example, in the
access of foreign intelligence agencies to transferred personal data.
Third, this research project makes concrete proposals de lege ferenda on how to
design data flow clauses for future EU trade agreements. The four proposals each
include a commitment to cross-border flows of personal data. For this reason, these
proposals stand in contrast to the model data flow clauses endorsed by the European
Commission in 2018.57 The underlying assumptions these proposals rest on––which
is also reflected in title of this book––are: first, cross-border flows of personal data
are important for the global economy and are of benefit to individuals and the larger
society, but the fundamental rights-based regulation of data transfers and the
resulting restrictions on data transfers are equally important to protect and guarantee
the privacy of individuals, their right to informational self-determination, the trans-
parency of data processing operations, and democracy. Second, international coop-
eration in the field of data protection and international commitments to cross-border
flows of personal data are important both to strengthen data protection and to combat
data protectionism as long as data flow clauses in trade agreements leave enough
room for genuine data protection considerations. This is why my proposals all respect
the extraterritorial dimension of the right to data protection in Article 8 CFR and
accommodate the legal mechanisms for data transfers in Chapter V GDPR.

54
Spaventa (2020), pp. 267-268; Lock (2019b), pp. 2249–2254; Schütze (2018), pp. 461–466;
Peers and Sacha (2014), pp. 1469–1486.
55
ECJ, Schrems 2, paras 174–185.
56
Ibid., para. 165; ECJ, Schrems, para. 87.
57
European Commission (2018).
References 11

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16 1 Introduction

Open Access This chapter is licensed under the terms of the Creative Commons Attribution 4.0
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 Part I
European Union Data Protection Law
Chapter 2
The Global Reach of the Right to Data
Protection

The internet as a technology not only revolutionized communication, it also enabled

new forms of trade. Digital trade often involves personal data. Information about
individuals now travels around the world on an unprecedented and rapidly growing
scale. The key to understanding the implications of data protection in the EU for
trade with the wider world is the Charter of Fundamental Rights of the EU (Charter,
CFR). The Charter has the status of primary Union law and data protection is
enshrined as a fundamental right in Article 8 CFR. The first section of this chapter
traces the development of the right to data protection from the early data protection
laws in Europe to the inclusion of Article 8 into the Charter. It identifies the driving
forces behind this development and offers insights into the origins of this new
fundamental right (Sect. 2.1). The second section addresses the substance of the
right to data protection. It explains the underlying values for the interpretation of the
new fundamental right and analyzes the six written constituent parts of Article
8 CFR. It shows that the right to data protection must be distinguished from the
right to private life in Article 7 CFR. The second section also explains what counts as
an interference with the right to data protection and addresses lawful limitations on
the exercise of this new fundamental right (Sect. 2.2). The third section focuses on
the extraterritorial dimension of the right to data protection. The jurisprudence of the
ECJ reveals an unwritten constituent part of the new fundamental right: the right to
continuous protection of personal data. Personal data cannot be exported to third
states that do not provide a level of protection for the transferred personal data that is
essentially equivalent to that guaranteed within the EU (Sect. 2.3). Certain practices
in third states are of particular relevance for the extraterritorial dimension of Article
8 CFR. Foreign internet surveillance often targets personal data that is transferred
from the EU to a third country. The fourth section analyzes the requirements for
foreign internet surveillance practices emanating from the right to data protection in
Article 8 CFR (Sect. 2.4).

© The Author(s) 2023 19

T. Naef, Data Protection without Data Protectionism, EYIEL Monographs - Studies
in European and International Economic Law 28,
https://doi.org/10.1007/978-3-031-19893-9_2
20 2 The Global Reach of the Right to Data Protection

2.1 Development of the Right to Data Protection

The development of the right to data protection in Article 8 CFR is based on, and
fueled by, technological progress and the associated new powers of the state. The
origins of the right to data protection are important in understanding this relatively
new fundamental right. The first data protection rules emerged in Europe in the
1970s (Sect. 2.1.1). These rules inspired international organizations such as the
Organization for Economic Cooperation and Development (OECD) and the Council
of Europe to dedicate attention to the increasingly important subject of data protec-
tion in the 1980s (Sect. 2.1.2). Diverging data protection rules in the member states
of the EC created problems for the common market and led to a communitywide
harmonization of data protection rules in the 1990s (Sect. 2.1.3). The constitution-
alizing process in the EU finally led to the codification of a fundamental rights
catalogue that included a new fundamental right to data protection in the 2000s
(Sect. 2.1.4).

2.1.1 Early Data Protection Laws

Rules on the processing of personal data first surfaced in European countries during
the second part of the last century. The German federal state of Hesse adopted the
first legal act concerning the use of information about individuals stored on public
authorities’ files in 1970 (Hessisches Datenschutzgesetz).1 Sweden approved the first
national law regulating automated processing of personal information in the public
and private sector in 1973 (Datalag).2 Germany was the first member of the EC to
pass a national law protecting individuals against the misuse of personal data
through data processing operations in 1977 (Bundesdatenschutzgesetz, BDSG).3
France endorsed a law on computers, files and freedoms addressing the collection
and processing of personal data in 1978 (loi relative à l’informatique, aux fichiers et
aux libertés).4 These four early laws constitute the first period of regulatory activities
related to data protection. They all have a similar background. The law in the
German federal state of Hesse followed the official setting up of public data
processing facilities in Hesse, where the public authorities were particularly active
in promoting the automated processing of information on individuals for

1
Hessisches Datenschutzgesetz vom 7. Oktober 1970, Gesetz- und Verordnungsblatt für das Land
Hessen Teil I, Nr. 41, 625 vom 12. Oktober 1970.
2
Datalag av. den 11 maj 1973, Svensk författningssamling 1973:289.
3
Gesetz zum Schutz vor Missbrauch personenbezogener Daten bei der Datenverarbeitung vom
27. Januar 1977 (Bundesdatenschutzgesetz, BDSG), Bundesgesetzblatt Teil 1, Nr. 7, 201 vom
1. Februar 1997.
4
Loi n° 78-17 du 6 janvier 1978 relative à l’informatique, aux fichiers et aux libertés, Journal
Officiel de la République Française, 227 du 7 janvier 1978.
2.1 Development of the Right to Data Protection 21

administrative purposes.5 The Datalag in Sweden was the direct outcome of public
concern generated by a population census that gathered personal data to facilitate
automated processing of information on Swedish citizens.6 Sweden had also been
developing a system of identification through personal identification numbers since
the 1940s. The comparatively early and progressive computerization of the Swedish
public administration and its capacity to integrate and connect decentralized infor-
mation added to the public concern responsible for the adoption of the Datalag. In
France, a journalism article about a government project named SAFARI (Système
Automatisé pour les Fichiers administratifs et le Répertoire des Individus) caused
great public alarm and spurred legislative action on data protection. SAFARI
entailed the linkage of disparate information on French citizens stored by different
public authorities.7 Accordingly, the computerization of public authorities and the
collecting and connecting of information about individuals in centralized data banks
triggered the first regulatory activities related to data protection in Europe.
Trade concerns did not play a role and human rights played only a minor role in
the early development of these data protection rules. The right to private life
enshrined in Article 8 ECHR was not mentioned in these laws. In Germany, neither
the Hessische Datenschutzgesetz nor the BDSG was associated with human rights.8
The Swedish Datalag was advanced to protect the personal integrity of individuals.
Only the French law stated in Article 1 that information technology must not infringe
human identity, human rights, private life and individual or public freedoms. Thus, it
cannot be said that the early data protection laws in Europe were (strongly) associ-
ated with human rights.
While these developments unfolded in Germany, Sweden and France, some other
European countries were choosing a different path to address the processing of
information about individuals: they established constitutional provisions. The Por-
tuguese Constitution of 1976 addressed the use of data processing under the title
“Rights, Freedoms and Guarantees”.9 Article 35 of the 1976 Portuguese Constitution
granted all citizens a right to information on the content of all data banks concerning
them and a right to access and rectify that data. It prohibited automatic processing of
data concerning a person’s political convictions, religious beliefs or private life,
except if the data was in non-identifiable form. It also made unconstitutional any

5
See generally González Fuster (2014a), pp. 56–58; Simitis (2010), p. 1995; Hondius (1975), p. 36.
6
See generally Klosek (2000), pp. 106–108; Eger (1978), pp. 1068–1073. One of the first and most
important data protection cases before the German Constitutional Court
(Bundesverfassungsgericht) also concerned a population census. BVerfGE, Volkzählung, Urteil
vom 15. Dezember 1983.
7
The article written by Philippe Boucher carried the title “Safari ou la chasse aux Français” and
appeared in Le Monde on 21 March 1974. See González Fuster (2014a), p. 62; Eger (1978),
pp. 1074–1078.
8
Lee Bygrave describes the German Datenschutzgesetz as particularly elusive to the interests or
values it aimed to substantiate. Bygrave (2002), p. 8.
9
Constituição da República Portuguesa de 2 de abril de 1976.
22 2 The Global Reach of the Right to Data Protection

attempt to give all Portuguese citizens all-purpose national identification numbers.10

The Spanish Constitution of 1977 addressed data processing indirectly.11
Article 18 of the 1977 Spanish Constitution enshrined a right to honor, personal
privacy, and family privacy (intimidad personal y familiar). It also guaranteed the
secrecy of communications. Moreover, it mandated that the law shall limit the use of
information technology in order to guarantee the honor, personal privacy, and family
privacy of citizens and the full exercise of their rights. Neither the 1976 Portuguese
Constitution nor the 1977 Spanish Constitution established a fundamental right to
data protection, but they addressed the use of computers and certain data processing
operations at the highest level in order to protect citizens. There was no link made to
trade in these provisions.
Austria was the first country with a constitutionally protected right to data
protection. The federal act on the protection of personal data was adopted in 1978
(Datenschutzgesetz, DSG).12 Article 1 DSG declares that the right to data protection
is a fundamental right enjoying constitutional rank and that it may only be restricted
under the conditions of Article 8 ECHR.13 Article 1 DSG further established that
everyone is entitled to have personal data kept secret, but only insofar as they have
an interest in that data deserving protection, particularly with regard to respect for
their private and family life. Even though data protection formally became a
fundamental right in Austria, it was not a self-standing right but intrinsically linked
to the right to private life.

2.1.2 Materialization in International Instruments

The development of the right to data protection entered a new phase by the
beginning of the 1980s, when the OECD and the Council of Europe adopted
instruments for the processing of personal information. Two key international
instruments were elaborated at this time. First, the Guidelines Governing the Pro-
tection of Privacy and Transborder Flows of Personal Data of the OECD (OECD
Privacy Guidelines) and second the Convention for the Protection of Individuals
with regard to Automatic Processing of Personal Data of the Council of Europe
(Convention 108).
The OECD is an international economic organization established in 1961 as the
successor of the Organization for European Economic Cooperation to promote

10
Constitutional reviews have later altered the content of Article 35 of the 1976 Portuguese
Constitution leading to an extension of the protection. See Dias Venâncio (2008), pp. 244–246.
11
Constitución Española de 6 de diciembre 1978, Boletin Oficial del Estado, Núm. 311.1, 29313 de
29 diciembre 1978.
12
Bundesgesetz vom 18. Oktober 1978 über den Schutz personenbezogener Daten
(Datenschutzgesetz, DSG), Bundesgesetzblatt Nr. 565/1978, 3619.
13
In Austria, constitutional protection is granted to fundamental rights contained in statutory
regulations enjoying constitutional ranking (Verfassungsrang). Prakke (2004), p. 67.
2.1 Development of the Right to Data Protection 23

economic development and world trade. The OECD brings together European and
non-European countries including the US. During the 1970s, more than a third of the
24 OECD member countries had already enacted laws with elements regulating the
processing of information about individuals. The OECD was concerned that differ-
ing national laws, superimposed on interconnecting information and communication
technology, would result in serious inefficiencies and economic costs, obstacles to
the attainment of its institutional objectives, and even divide the global community
of free market economies.14 The US in particular feared that with the advent of
automatic data processing, European countries (and their regional institutions such
as the EC) might erect legal and economic barriers for privacy reasons. US officials
suspected some sort of data protectionism in so far as “legislation, nominally for the
purpose of data protection, could actually have such objectives as the protection of
domestic employment, local technology and expertise, home industries, national
culture, language, and sovereignty.”15 European countries stressed the intrinsic
value of their data protection rules and the need to protect their citizens from
automatic data processing.16
Given the different perspectives, especially on each side of the Atlantic, the
OECD tried to resolve this quandary with general principles regulating the
processing of personal data. The introduction of these general principles into domes-
tic law, it was hoped, would reduce economic inefficiencies and strengthen citizens’
rights regarding their personal information. The OECD Privacy Guidelines thus set
minimum standards for data privacy in order to reduce differences between OECD
member states and to avoid undue interference with cross-border flows of personal
data. The OECD wanted to eliminate reasons that might induce member states to
restrict such data flows.17 The OECD Privacy Guidelines did not explicitly refer to
data protection and used instead the words “protection of privacy” and “individual
liberties.” The Explanatory Memorandum accompanying the OECD Privacy Guide-
lines conceded that it is common practice in continental Europe to refer to privacy
protection laws as data laws, or even as data protection laws.18
Not long after the adoption of the OECD Privacy Guidelines, the Council of
Europe finalized Convention 108.19 The Council of Europe is an international

14
This was highlighted by Justice Michael Kirby on the 30th anniversary of the OECD Privacy
Guidelines. Justice Kirby was the Chair of the OECD Expert Group on Transborder Data Flows and
the Protection of Privacy that prepared the OECD Privacy Guidelines.
15
Kirby (1980), p. 28.
16
For European countries, the impairment of personal privacy was not a theoretical danger. It was
one deeply remembered from the misuse of information about individuals during World
War II. Kirby (2011), pp. 8–9.
17
Lynskey (2015), p. 48.
18
OECD (1980), para. 4.
19
The OECD Expert Group that prepared the OECD Privacy Guidelines was instructed to work in
close cooperation and consultation with both the Council of Europe, which had already been active
in the field of data protection for some years, and the EC, which was starting to express interest in
data protection. Michael (1994), p. 33; Kirby (1980), p. 43.
24 2 The Global Reach of the Right to Data Protection

organization that was established in 1949 to uphold human rights, democracy, and
the rule of law in Europe. The Parliamentary Assembly of the Council of Europe
issued a recommendation in 1968 that pointed out the need to study and report on the
question of whether national legislation in the member states adequately protected
the right to privacy—enshrined in Article 8 ECHR—against violations enabled by
the use of modern scientific and technical methods.20 Subsequent resolutions of the
Council of Europe covered data banks in the private sector (1973)21 and in the public
sector (1974).22 Convention 108 (adopted in 1981) was drafted because there were
still problematic disparities between data protection regimes across Europe after the
adoption of the two resolutions. Unlike the OECD, the Council of Europe was
primarily concerned with the protection of human rights. The purpose of Convention
108 was to secure respect for every individual’s rights and fundamental freedoms,
and in particular the right to privacy, with regard to automatic processing of personal
data in the territory of each party.23
Shortly before the adoption of Convention 108, the Parliamentary Assembly of the
Council of Europe issued a recommendation to examine the desirability of including
in the ECHR a provision on the protection of personal data.24 The reply of the
Committee of Ministers, which came after the adoption of Convention 108, referred
to the Steering Committee for Human Rights and the European Committee for Legal
Cooperation who, in their respective opinions, agreed that it was not appropriate at
the time to draft a provision on the protection of personal data for incorporation in the
ECHR.25 They suggested that it was preferable to first acquire more experience with
Convention 108. They also highlighted that the ECtHR recently confirmed in Marckx
v. Belgium that states had positive obligations under the right to private life in Article
8 ECHR and that this possibly implied provisions for the safeguarding of private data
from automatic processing.26 The political discussion did not resume, and the ECtHR
expanded its jurisprudence on data protection issues based on Article 8 ECHR.
These two international instruments from the 1980s, put data protection on the
global agenda. They shared the ambition to enable cross-border flows of personal
data on the basis of common data protection standards. Especially the OECD Privacy
Guidelines tried to address allegations of data protectionism in Europe raised by the

20
While reluctant initially to associate privacy with the right to private life in Article 8 ECHR, the
Parliamentary Assembly of the Council of Europe set off to use the word privacy to refer to the
content of Article 8 ECHR in Council of Europe, Recommendation 509 (1968), para. 8.1. González
Fuster (2014a), pp. 81–84; Bygrave (2002), p. 20.
21
Council of Europe (1973), p. 22.
22
Council of Europe (1974), p. 29.
23
The entanglement between these expressions continued in EU law, where it survived for several
decades, and where it is arguably not (yet) completely undone. González Fuster (2014a); see
Sect. 2.3.3.
24
Council of Europe (1980), para. 3.
25
Council of Europe (1981), Item 10, 27–29.
26
See ECtHR, Marckx v. Belgium, para. 31. Interestingly, such an argument could also have been
used to question the need to adopt Convention 108 in the first place.
2.1 Development of the Right to Data Protection 25

US. The OECD Privacy Guideline intended to bridge the Atlantic divide to guarantee
frictionless flows of personal data. At the same time, Convention 108 associated data
protection heavily with human rights protection in Europe.

2.1.3 Harmonization in Community Law

The European Commission stressed in a communication from 1973 the need to

become more competitive with the data processing industry in the US.27 The
Commission underlined that common measures for the protection of citizens in the
field of data protection are necessary to support the effective application of computer
systems on the single market.28 It seems therefore, that the Commission began to
address data protection in the context of economic competition. However, it did so
not for protectionist reasons but to prevent inefficiencies on the common market. The
Commission also underlined that rules on access to information about individuals in
data banks were of constitutional importance despite the fact that in 1973 there were
no constitutional provisions on data processing in any European country. The
Commission thus warned that it would be better to seek genuine political consensus
on this matter than to be obliged to harmonize conflicting national legislation later
on.29
The European Parliament agreed and stressed that national provisions to protect
privacy have a direct influence on the establishment and operation of the common
market. It called on the Commission to prepare a proposal for a directive on the
harmonization of legislation on data protection that would also provide citizens of
the EC with maximum protection.30 The Commission instead recommended the EC
member states to ratify Convention 108 in 1981. It considered this international
instrument an appropriate tool to create a harmonized level of data protection in
Europe.31 Despite being reluctant to propose EC legislation on data protection, this
recommendation was quite progressive because it also stated that data protection had
the quality of a fundamental right.32

27
Commission of the European Communities (1973), paras 3–5.
28
Ibid., para. 39.
29
Ibid.
30
European Parliament (1979), paras 2, 4.
31
Commission of the European Communities (1981).
32
Ibid. Sect. I Para. 2. With the exception of the English version, all eight other language versions
maintain that data protection had the quality of a fundamental right. For example, the German
version reads: “Der Datenschutz ist ein notwendiger Bestandteil des Schutzes des Individuums. Er
hat den Charakter eines Grundrechts.” The English version merely states: “Data protection is a
necessary part of the protection of the individual. It is quite fundamental.”
26 2 The Global Reach of the Right to Data Protection

Nine years later, the Commission concluded that Convention 108 had failed to
reduce the differences between national data protection rules. There was too much
leeway in the implementation of the basic principles of Convention 108 and not all
EC member states had ratified the international instrument.33 Moreover, practical
experience showed that the differences between national data protection rules
endangered the common market. For example, the French national data protection
authority blocked the transfer of employee data between the Fiat corporate offices in
France and Italy in 1989 arguing that Italy did not have adequate data protection
regulation.34
The Commission adopted a proposal for a directive concerning the protection of
individuals in relation to the processing of personal data in 1990. The first objective
in Article 1(1) of the 1990 proposal was the protection of the privacy of individuals
in relation to the processing of personal data contained in data files. Privacy was
portrayed in Recital (7) of the 1990 proposal as being protected in Article 8
ECHR and in the general principles of Community law. The second objective in
Article 1(2) of the 1990 proposal was to prevent restrictions to the free flow of
personal data between EC member states. The Commission argued that ensuring a
high level of fundamental rights protection within the Community system would
remove obstacles to the establishment of the common market based on the approx-
imation of laws rule in Article 100a EC Treaty.35 Directive 95/46/EC was adopted in
1995. The directive did not formally endorse the notion of data protection although it
was widely known as the Data Protection Directive (DPD). The directive referred to
the protection of the fundamental rights and freedoms of natural persons, and in
particular, their right to privacy with respect to the processing of personal data.
Directives are designed to harmonize public policy throughout the EU by expressing
an agreed set of goals and principles while granting member states some room to
choose the ways to meet those goals and principles. Data protection thus became an
obligation under Community law through Directive 95/46/EC.36
The Lisbon Treaty of 2009 marked another step for the harmonization of data
protection in Europe.37 The treaty introduced Article 16 TFEU on data protection
into EU primary law and officially gave the EU the competence to enact consistent
data protection legislation.38 The Commission subsequently initiated a review pro-
cess of Directive 95/46/EC. The review process identified three key problems of the
framework:39

33
European Commission (1990a), p. 3, 15.
34
Brouwer (2008), p. 187; Simitis (1990), p. 11.
35
European Commission (1990b).
36
Bennet (1997), p. 106.
37
Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the
European Community, signed at Lisbon [2007] OJ C 306/1.
38
Consolidated version of the Treaty on the Functioning of the European Union [2012] OJ C
326/47. Hielke Hijmans provides an extensive analysis of Article 16 TFEU. Hijmans (2016), p. 4.
39
European Commission (2011), pp. 3–4; De Hert and Papakonstantinou (2012), p. 131.
2.1 Development of the Right to Data Protection 27

– Insufficient protection of the rights of individuals with regard to modern data

processing technologies.
– Inadequate level of harmonization of data protection laws in the EU.
– Continuing challenges in the handling of increasing global data flows.
The Commission went on to present a proposal for a GDPR in 2012.40 Regulations
are meant to implement public policy in the EU without granting the member states
room to choose the ways to meet the formulated goals and principles. They are
directly applicable in all EU member states.41 The Commission had promised a clear
and uniform legislative framework at EU level that would do away with the
patchwork of legal regimes across the EU member states and remove barriers for
easier trade relations.42 The GDPR was adopted in 2016.43 Consequently, data
protection is now harmonized and consolidated on the level of the EU.44 In contrast
to earlier legislation, the GDPR does not refer to privacy. Instead, the GDPR sets out
in Article 1(2) to protect fundamental rights and freedoms of natural persons and in
particular the right to data protection.

2.1.4 Inclusion in the Charter of Fundamental Rights

While developing rules on data processing, the EU was also concerned with its
approach to fundamental rights. EU institutions discussed possible paths to reinforce
their formal commitment to fundamental rights for many decades. After the conclu-
sion of the Amsterdam Treaty in 1997, the European Commission entrusted a group
of experts to analyze the possibility of explicitly recognizing a catalogue of funda-
mental rights in EU law. The Commission was particularly interested in the possi-
bility of including new rights that mirror the challenges of the modern information
society.45 The group of experts was chaired by Spiros Simitis, a renowned specialist
in the field of data protection.46 It was thus no surprise that the group of expert

40
European Commission (2012).
41
ECJ, Politi s.a.s. v Ministry for Finance of the Italian Republic, para. 9.
42
Reding (2012), p. 128.
43
The adoption was also fueled by the revelations of former National Security Agency (NSA)
analyst Edward Snowden on the scale of surveillance by US intelligence services and their global
and European partners in 2013.
44
De Hert and Papakonstantinou (2016), p. 182.
45
Expert Group on Fundamental Rights (1999), p. 6. A committee that was appointed by the
European Commission in the run-up to the intergovernmental conference in Amsterdam already
published a report in 1996 arguing that technological progress is creating many problems in terms of
fundamental rights, that the information society may threaten individual privacy, and that it is thus
necessary to stimulate the recognition of new rights. See Comité des Sages (1996), pp. 15–16, 41.
46
Spiros Simitis’ career is intertwined with the development of data protection in Europe. He had
been one of the drafters of the pioneering German data protection laws, Data Protection Commis-
sioner of the German state of Hesse, data protection expert at the Council of Europe and consultant
for the European Commission in matters of data protection.
28 2 The Global Reach of the Right to Data Protection

underlined their critique of the state of fundamental rights protection in EU law with
the example of data protection.47 Their report recommended the explicit recognition
of fundamental rights in the EU, including all rights provided in Articles 2 to
13 ECHR, but also the addition of new rights such as the right to determine the
use of personal data.48
Inspired by the report of the expert group, the European Council decided in 1999
that a charter of fundamental rights should be adopted in order to make the overrid-
ing importance and relevance of fundamental rights more visible to the citizens of
the Union.49 The Council formally entrusted the drafting of this charter to a special
body composed of representatives of the EU member states’ heads of state and
government, the President of the European Commission, members of the European
Parliament, and members of national parliaments. The body called itself the Con-
vention.50 The Convention’s job was marked by a tension between its mandate to
make existing fundamental rights more visible and the possibility to innovate within
this mandate. In order to render existing rights more visible, it was necessary to
identify rights that were not particularly visible, and there is only a thin line between
an invisible right and a non-existing right.51 The tentative list of rights distributed by
the Convention’s bureau (called the Praesidium) in January 2000 invited reflection
on the possibility of a right to data protection in addition to the right to respect for
private life.52 This list was preceded by a recommendation from the Article 29 WP in
1999 to include a fundamental right to data protection in the charter.53

47
The expert group noted that generally accepted data protection principles appeared to be
abandoned in the third pillar of the EU (police and judicial cooperation) even though Directive
95/46/EC suggested a link between data protection and fundamental rights. See Expert Group on
Fundamental Rights (1999), p. 8.
48
Ibid., 17.
49
European Council (1999).
50
The Convention was very data protection friendly based on the careers of some of its members.
The Convention was chaired by the Roman Herzog, former President of the Federal Constitutional
Court of Germany. He was particularly familiar with the Federal Constitutional Court’s case law on
the right to informational self-determination. Guy Braibant was involved in the drafting of the
French loi relative à l’informatique, aux fichiers et aux libertés in 1978. Jordi Solé has actively
contributed to the drafting process of the 1978 Spanish Constitution, and specifically to the
discussions on the wording on the provision regarding data protection. Stefano Rodotà was a
member of the Expert Group set up in 1978 to draft the OECD Privacy Guidelines and Chairman of
the Italian data protection authority as well as a member of the Article 29 WP that had already
expressed its full support for the inclusion of a right to data protection in the Charter.
51
González Fuster (2014a), p. 192.
52
Presidency Note (2000), p. 5.
53
Article 29 WP (1999), pp. 2–3. The Article 29 WP was an independent European body with
advisory status according to Article 29 Directive 95/46/EC and consisted of representatives of all
supervisory authorities of the EU member states. When the GDPR came into force on 25 May 2018,
the Article 29 WP was replaced with the European Data Protection Board (EDPB) that carries out
the same task. The work of the Article 29 WP was not legally binding, but it carried considerable
weight because it reflects the legal interpretation and policy objectives of the supervisory authorities
in the EU member states tasked with enforcing data protection rules.
2.1 Development of the Right to Data Protection 29

The first draft of Articles 10 to 19 of the charter in February 2000 offered a

separate article on data protection: “Every natural person shall have a right to
protection for his personal data.”54 This was not an infringement of the prohibition
to innovate because the accompanying comments of the draft claimed that data
protection was in any case already an aspect of privacy.55 The same draft provided
an alternative, more comprehensive wording for the article on data protection with
additional constituents: “The information must be processed fairly and for specified
purposes, and subject to the data subject’s consent or to any other legitimate basis
specified by law.”56 The draft also raised the question of whether oversight by an
independent body should be included.57 It is remarkable that, with the exception of
the right of access to personal data and the right to have personal data rectified, this
first draft (in its alternative wording) already contained all the constituent parts of the
final version.
At some point of the amendment stage, members of the Convention suggested to
delete the entire article on data protection and to incorporate instead a reference to
data protection under the right to respect for private life.58 These amendments were
ignored in the final draft of the charter in October 2000. The final draft included both
Article 7 entailing respect for private and family life and Article 8 enshrining the
protection of personal data.59

Article 7 Respect for Private and Family Life

Everyone has the right to respect for his or her private and family life, home and
communications.
Article 8 Protection of personal data
1. Everyone has the right to the protection of personal data concerning him
or her.
2. Such data must be processed fairly for specified purposes and on the basis of
the consent of the person concerned or some other legitimate basis laid down
by law. Everyone has the right of access to data which has been collected
concerning him or her, and the right to have it rectified.
3. Compliance with these rules shall be subject to control by an independent
authority.

The comments elaborated under the authority of the Praesidium accompanying

the Charter of Fundamental Rights specified that Article 8 was based on Article 286

54
Praesidium (2000a), p. 5.
55
Ibid.
56
Ibid.
57
Ibid.
58
Praesidium (2000b), p. 448, 465.
59
Praesidium (2000c).
30 2 The Global Reach of the Right to Data Protection

EC Treaty, Directive 95/46/EC, Article 8 ECHR, and Convention 108.60 Moreover,

the assertion in the comments that data protection was an aspect of privacy
disappeared. However, the reference to the right to private life in Article 8 ECHR
still constitutes a weak link between the new right to data protection and privacy. The
same is true for the references to Directive 95/46/EC and Convention 108 because
they also refer to privacy. The preamble to the Charter declares that it reaffirms rights
as they are found in particular constitutional traditions and international obligations
common to the EU member states, the TEU, the Community Treaties, the ECHR, the
Social Charters adopted by the Community and by the Council of Europe, and the
case law of the ECJ and of the ECtHR. The Convention stretched its mandate to
render existing rights more visible with the inclusion of data protection in the charter
in so far as it was not a self-standing right that could be reaffirmed from the indicated
sources.61 The coexistence of the right to private life and the right to data protection
in the Charter might be described as the outcome of an unresolved friction between
an established approach and a novel one.62 This is why some scholars argue that the
Convention had manifestly not respected the prohibition to innovate with respect to
data protection.63
The new fundamental right to data protection established that the protection
afforded in the Charter is not exclusively granted to individuals and their personal
data in relation to their privacy, but generally whenever their personal data is
processed. Ultimately, the inclusion of data protection as a fundamental right in
the Charter goes along with another part of the Preamble of the Charter expressing
the necessity to strengthen the protection of fundamental rights in light of changes in
society, social progress, and scientific and technological developments.64 The Char-
ter was formally proclaimed by the European Parliament, the Council, and the
European Commission on 7 December 2000 in Nice.65 It came into force on
1 December 2009 and is referenced in Article 6(1) TEU as an independent docu-
ment, which has the same legal value as the EU Treaties.

60
Explanations relating to the Charter of Fundamental Rights [2007] OJ C303/17, 20.
61
It is difficult to assert the existence of a common constitutional tradition among EU member states
in relation to the right to data protection. González Fuster (2014a), pp. 183–184.
62
Coudray (2010), p. 290.
63
González Fuster (2014a), p. 199; Braibant (2001), p. 47.
64
Rodotà (2009), p. 80. Orla Lynskey argues that the EU has not adequately justified the introduc-
tion of the right to data protection in the EU legal order. Lynskey (2014), p. 572.
65
Charter of Fundamental Rights of the European Union [2000] OJ C364/1. At the same time, it
was decided to defer a decision on the Charter’s legal status. See European Council (2000), para. 2.
Other documents randomly have
different content
of the century, that is to say—seventy years and more of such a
harvest as no other country has ever had, had filled the barns of
English to bursting with the ripest crops of romantic luxuriance—its
treasure-houses with the gold and the ivory and the spices—if
sometimes also with the apes and the peacocks—of Romantic
exploration and discovery. There was no need to invite further
acquisition—the national genius, in Ben’s own quotation,
sufflaminandus erat. It was his task to begin the sufflamination: and
he did it, not perhaps with a full apprehension of the circumstances,
and certainly with nothing like a full appreciation of what the age,
from its “Tamerlanes and Tamerchams” onwards, had done; but still
did it. In his most remarkable book we see the last word of
Elizabethan criticism, not merely in point of time, but in the other
sense. Ben is beyond even Sidney, much more Webbe and
Puttenham, not to mention Ascham and Wilson, in grasp; while, if
we compare him with the Continental critics of his own time, he
shows a greater sense of real literature than almost any of them.
But, at the same time, he has not occupied the true standing-ground
of the critic; he has not even set his foot on it, as Dryden, born
before his death, was to do. In him, as in all these Renaissance
critics, we find, not so much positive errors as an inability to
perceive clearly where they are and what their work is.
Passing from the performances of the several countries[291] to the
general critical upshot of the century, as we passed to those
performances from the survey of individual works, we have already
secured one perception of result. Criticism is once more constituted;
it is constituted indeed much more fully, if by no means more
methodically, than has ever been the case before. By the time of our
last Italian writer, Faustino Summo (Vauquelin is accidentally, and
Ben Jonson not so accidentally, later in the other countries, but
neither represents a stage so really advanced), Criticism has, besides
its ancient books of the Law, quite a library of modern prophets,
commentators, scribes. The strings of authorities, so specially dear
to the coming century, can be produced without any difficulty
whatsoever: and however much these authorities may differ on
minor points, their general drift is unmistakable. Isolated dissenters
like Patrizzi may make good their own fastnesses; but the general
army hardly troubles itself to besiege or even to mask them, it goes
on its way to conquer and occupy the land. Of the constitution
established, or shortly to be established, in the conquered districts,
some sketch has been given, but a caution should here once more
be interposed against taking the word “established” too literally. Still,
all the dogmas of the Neo-Classic creed, its appeal to the ancients
and its appeal to Reason or Nature or Sense, its strict view of Kinds,
its conception of Licence and Rule, its Unities, are more or less
clearly evolved. And fresh particulars—such as its sharp reaction
from the allowance and even recommendation of terms of art,
archaisms, &c., which had been partly adopted by some Italians and
warmly championed by the Pléiade—are at hand. Indeed, the
business of the seventeenth century is, according to the title which
we have ventured to take for the next book, much more to
crystallise what is already passing out of the states of digestion and
solution—to codify precedent case-law—than to do anything new.
There is not only this important advance in at least poetical theory
to be considered, but also an advance still more important, though
as yet not formally marshalled and regimented, in the direction of
critical practice—of the application directly, to books old and new, of
the critical principles so arrived at. We have seen that, for good and
sufficient reasons, there was not so very much of this in classical
times proper, and that there was so little of it as to be almost
nothing in the Middle Ages. It did not seem necessary, in the
concluding chapters of the first volume, to multiply proofs of this, as
they could have been multiplied, merely to display acquaintance with
mediæval literature. To take two fresh ones here, each famous for
other reasons, the well-known reference of Wolfram von Eschenbach
at the end of the Parzival to the “unrightness” of Chrestien de
Troyes’ version, and the godly wrath which made “Kyot” set things in
better order, contains no literary criticism at all; the matter,
according to the usual mediæval habit, is looked upon as a question
of truth or falsehood, not of good or bad literary presentment. And
when the equally well-known but anonymous scribe wrote jubilantly
on the Cursor Mundi,
 “This is the best book of all,”

it is as certain as anything can be that he was not thinking, as he

might fairly have thought, of the not small skill in compilation and
narration displayed in that mighty miscellany, but merely that it
contained a great deal of useful instruction and pleasant history. In
the notices of books and writers which accumulate during our
present period this is more and more ceasing to be the case; it has
in fact ceased to be so from almost the beginning.
Such an estimate as that given by Ascham as Cheke’s of Sallust
simply could not have suggested itself to any mediæval mind; the
Humanist practice of the fifteenth century had—quite early in the
sixteenth—made it natural enough, at least as regards ancient
writers. And it was constantly becoming more and more common as
to moderns. The Italians, in a limited and scholastic fashion, had
begun it long before as to Dante; they continued it in regard to
Boccaccio and Petrarch; they were spurred on to practise it more
and more, first by the immense popularity of the Orlando, and then
by the rival (and deliberately urged as rival) charms of the
Gerusalemme. Compare for one moment the survey of books and
authors which we quoted or summarised from the Labyrinthus in the
last volume with that which we have analysed from Lilius Giraldus in
this—the whole point of view, the whole method of handling, is
altered. In France and England more specially, attempts, clumsy,
limited, subject to whatever epithet of qualification any one pleases
to apply, as they may be, are made to take a backward historical
view of poetry at least; and when great work such as Ronsard’s or
Spenser’s is produced, there is a real, if rudimentary, attempt made
to judge it critically. By the time that we reach Ben Jonson—who no
doubt has a strong tinge of the seventeenth century superinduced,
by nature as well as time, on his sixteenth-century nativity—such
aperçus almost of the highest critical kind in their species, as those
on Bacon and Shakespeare, are possible to at least the higher
intellects,—it needs but a step to the very highest kind, such as that
of Dryden on the same Shakespeare. That what we have called the
crystallisation of a critical creed affects these estimates not always
for the best is not of real importance—the point is that we have at
last got them.
These are great things, but, still postponing criticism on this
criticism as a whole, we may point out one or two drawbacks in it
which already appear, and which are quite independent of individual
inclination on the vexed questions of Classic or Romantic, Practice or
Rule, Subject or Expression.
The first is that, to some extent unavoidably, but to a greater
extent than that excuse will cover, the criticism which we have
reviewed is criticism of poetry only. Most of it is quite openly and
avowedly so. Poetica, Poetice, De Poetica, Della Poetica, Della Vera
Poetica, Art Poétique, Art of Poetry, Apology for Poetry—these are
the very titles of the books we have been discussing. When prose
comes in at all, except on rare and mostly late occasions, it is only
on questions more abstract or less abstract connected with poetry
—“Whether Tragedy and Comedy may be written in Prose,”
“Whether Verse is necessary to Poetry,” and the like. If poetry in
ancient days was, though it received plenty of attention, sometimes
injuriously postponed to oratory, it certainly now has its revenge.
Oratory itself, though occasionally handled, obviously is so as a sort
of legacy from the ancients themselves, from a sort of feeling that it
would not be decent to say nothing about a subject on which
Aristotle, and Cicero, and Quintilian have said so much. The formal
Letter, being rather a favourite Italian institution, is not quite
neglected; it receives some attention among ourselves from Ben.
Whether History can or must give subjects for poetry is keenly
debated; but the question is approached entirely from the side of
interest in Poetry, not in History. At the very close of our period, we
find so great a prose writer as Bacon doubting the solvency of
vernacular prose; a little earlier we find Montaigne taking note of it
chiefly, if at all, in regard to matter, Pasquier hardly taking notice of
it at all.
This is unfortunate, because it tends further to perpetuate the
mischievous absorption in Kinds, and to postpone the attainment of
the position from which, though the difference between prose and
poetry may be seen more sharply than ever, the common literary
qualities of both, and the way in which they affect the delight of the
receiver, are at last perceived. It is unfortunate, further, because it
tends to prevent the enjoyment of the full advantages which the
modern literatures are gradually giving to the critic in the very
departments—the prose romance, the essay, and others—where
ancient criticism suffered most from the absence of material.
Another drawback which it may seem captious, or ungenerous, or
even childish, to urge, but which really has a great deal to do with
the matter, is that, active as the period was in criticism, it did not
produce a single very great critic practising on a great scale. Its four
or five critics of greatest literary genius were (I exclude Bacon for
reasons given, and Spenser hardly comes in) Ronsard, Du Bellay,
Tasso, Sidney, and Ben Jonson. The two Frenchmen dealt with but a
small part of the subject, and from but a special point of view; Tasso
was mainly “fighting a prize,” and his own prize; Sidney’s was a very
little tractate of general, if generous, protest, and entered into no
applications; Ben’s critical remains are un-co-ordinated notes. On the
other hand, of the specially critical writers, Scaliger on the strictly
erudite and strictly classical side, Castelvetro in a sort of middle
station, and Patrizzi as a voice crying in the wilderness, are perhaps
the only three who rise distinctly above mediocrity. And, as has been
pointed out already, Scaliger is too much of a pedant, Castelvetro is
a mere commentator, and Patrizzi a philosopher militant, who carries
on one of his campaigns in the province of criticism.
The disadvantages of this are twofold. Not merely do we get no
brilliant and, at least in appearance and claim, authoritative
exposition of the subject, like that of Boileau or that of Pope later on
the dogmatic side, like those of Dryden and Johnson on the
illustrative and exemplifying; but the whole critical system comes
into existence by a process of haphazard accretion—by (to repeat a
metaphor already used) an accumulation of individual judgments at
common law. No doubt this gives a certain strength, a certain
naturalness, to the creed when it is formed. It has not been foisted
on the communis sensus—that sensus has been inured and trained
to it. The extraordinary toughness and vitality of the resultant is very
likely due to this. But it caused also some of that inconsistency and
apparent irrationality which a system of common law almost
necessarily contracts as it grows: and it was more and more driven
to throw over these inconsistencies and irrationalities that cloak of
factitious Reason, or Sense, or Nature which, by the eighteenth
century, becomes the mere threadbare disguise of a decrepit
Duessa.
If, and when, we arrive at the close of that century, after a
somewhat shorter halt and survey at the termination of the
seventeenth, when the deaths of Boileau and Dryden made a real
break—we shall have to complete this necessarily partial view of the
whole Neo-Classic dispensation. We have seen it here in its Period of
Origins, and, without endeavouring to add too many strokes to the
picture, we may point to the fresh illustration of that principle which
has been adumbrated (I fear, from some remarks of good critics,
with insufficient perspicuity) at the close of the last volume. We saw
that the tendency of Greek criticism was good, because, whether it
was perfect criticism in itself or not, it was exactly the criticism
needed yet further to perfect the perfections of Greek literature; and
that much the same was the case in Latin. We saw that the
quiescence of Criticism in Mediæval times permitted the gracious
wilding of mediæval art to flourish unchecked and fill the waste
places of the field. But here we see a new thing, hinted at before,
the opposition, that is to say, of criticism to at least the best
creation. Sidney’s dramatic criticism simply would, if it could, sweep
Shakespeare from rerum natura, and he looks half askance at the
work of his own familiar friend Spenser. Ben would put the
“Tamerlanes and Tamerchams” in the dustbin. To that untamable
Romantic luxuriance which makes the glory of English literature at
the time, which gives French most of its actual strength, and which,
in failing measure, still supports the pride of Italy, the general
tendency of Renaissance criticism opposes a perpetual “Thou shalt
not.” It is not too much heeded—that would have been disastrous;
but it is heeded to some extent, and that is salutary. A kind of check
is put on the too wild curvetings, the too meteoric flights, of
Pegasus. There was always the danger that Jeronimo at the
beginning and Cleveland at the end might have too truly expressed
our own great age; that the odd word-coinage of the Pléiade, and
the tasteless rococo stuff of French literature about 1640, might
have done the same for France. Against this the critics raised
unceasing voices; and, though the voices were sometimes those of
geese, they really did something to save the Capitol.

285. See vol. i. p. 321 note.

286. Fracastoro and Scaliger could at once obtain a writ of ease,

as De Quincey is evidently speaking of “Italian” critics in the
vernacular. I hope he was not thinking of Tasso here, or of Gravina
later: but the seventeenth and eighteenth century men are certainly
in more danger of his judgment.

287. M. Pellissier and others have taken this line.

288. Some exception ought, perhaps, to be made for Pasquier:

but not much.

289. Yet even he does condescend to it too much in his notices of

“objections” towards the end of the Poetics.

290. These judgments might of course be reinforced enormously

by extracts from letters and poems commendatory, as well as from
substantive examples, of Elizabethan literature, prose or verse. But
this is just one of the points in which the constantly increasing
pressure of material makes abstinence, or at least rigid temperance,
necessary as we come downwards. Some very notable passages in
creative works—Shakespeare’s remarks on drama among the more,
and Ben’s on “men’s and women’s poets” among the less—are
glanced at elsewhere: Webster’s famous “catalogue déraisonné” (yet
not wholly so) of his great companions, and his odd confession of
inability to manage “the passionate and weighty nuntius,” tempts
fuller notice. But one must refrain.
 291. It has seemed better to reserve Sturm, Fabricius, and the few
other critics of sixteenth-century Germany, till the next Book, for
reasons there to be exposed. The reasons for similarly putting off
the Spaniards have already been touched upon: and the minor
nations do not press.
 BOOK V

THE CRYSTALLISING OF
THE NEO-CLASSIC CREED

“It is not enough that Aristotle has said so, for Aristotle drew his models of
tragedy from Sophocles and Euripides; and, if he had seen ours, might have
changed his mind.”—Dryden.
 CHAPTER I.

FROM MALHERBE TO BOILEAU.

THE SUPPLANTING OF ITALY BY FRANCE—BRILLIANCY OF THE FRENCH
REPRESENTATIVES—MALHERBE—THE ‘COMMENTARY ON DESPORTES’—
WHAT CAN BE SAID FOR HIS CRITICISM—ITS DEFECTS STIGMATISED AT
ONCE BY REGNIER—HIS ‘NINTH SATIRE’—THE CONTRAST OF THE TWO A
LASTING ONE—THE DIFFUSION OF SEVENTEENTH-CENTURY CRITICISM—
VAUGELAS—BALZAC—HIS LETTERS—HIS CRITICAL DISSERTATIONS—OGIER
AND THE PREFACE TO ‘TYR ET SIDON’—CHAPELAIN: THE HOPELESSNESS OF
HIS VERSE—THE INTEREST OF HIS CRITICISM—THE ‘SENTIMENTS DE
L’ACADÉMIE SUR LE CID’—PREFACES—‘SUR LES VIEUX ROMANS’—LETTERS,
ETC.—CORNEILLE—THE THREE ‘DISCOURSES’—THE ‘EXAMENS’—LA
MESNARDIÈRE—SARRASIN—SCUDÉRY—MAMBRUN—SAINT-EVREMOND—HIS
CRITICAL QUALITY AND ACCOMPLISHMENT—HIS VIEWS ON CORNEILLE—
ON CHRISTIAN SUBJECTS, ETC.—ON ANCIENTS AND MODERNS—GUI PATIN:
HIS JUDGMENT OF BROWNE—TALLEMANT, PELLISSON, MÉNAGE, MADAME
DE SÉVIGNÉ—THE ‘ANA’ OTHER THAN MÉNAGE’S, ESPECIALLY THE
‘HUETIANA’—'VALESIANA'—‘SCALIGERANA’—AND ‘PARRHASIANA’—PATRU,
DESMARETS, AND OTHERS—MALEBRANCHE—THE HISTORY OF BOILEAU’S
REPUTATION—THE ‘ART POÉTIQUE’—ITS FALSE LITERARY HISTORY—
ABSTRACT OF IT—CRITICAL EXAMINATION OF IT—WANT OF ORIGINALITY—
FAULTS OF METHOD—OBSESSION OF GOOD SENSE—ARBITRARY
PROSCRIPTIONS—BOILEAU’S OTHER WORKS—THE ‘SATIRES’—THE
‘EPIGRAMS’ AND ‘EPISTLES’—PROSE: THE ‘HÉROS DE ROMAN’; THE
‘RÉFLEXIONS SUR LONGIN’—THE “DISSERTATION ON 'JOCONDE'”—A
“SOLIFIDIAN OF GOOD SENSE”—THE PLEA FOR HIS PRACTICAL SERVICES—
HISTORICAL EXAMINATION OF THIS—CONCLUDING REMARKS ON HIM—LA
BRUYÈRE AND FÉNELON—THE “DES OUVRAGES DE L’ESPRIT”—GENERAL
OBSERVATIONS—JUDGMENTS OF AUTHORS—FÉNELON: THE ‘DIALOGUES
SUR L’ELOQUENCE’—'SUR LES OCCUPATIONS DE L’ACADÉMIE FRANÇAISE'—
AND ITS CHALLENGE TO CORRECTNESS—THE ABBÉ D’AUBIGNAC—HIS
‘PRATIQUE DU THÉÂTRE’—RAPIN—HIS METHOD PARTLY GOOD—HIS
PARTICULAR ABSURDITIES AS TO HOMER IN BLAME—AS TO VIRGIL IN
PRAISE—AS TO OTHERS—THE READING OF HIS RIDDLE—LE BOSSU AND
 THE ABSTRACT EPIC—BOUHOURS—ENCYCLOPÆDIAS AND NEWSPAPERS—
BAYLE—BAILLET—THE ETHOS OF A CRITICAL PEDANT—GIBERT—THE
ANCIENT AND MODERN QUARREL—ITS SMALL CRITICAL VALUE.

The causes of the transference of the course of critical empire,

northwards as well as westwards, from Italy to France, in the
seventeenth century, lie (except in so far as they will body
themselves forth in the plain tale of this course which follows)
somewhat outside the plan which has been traced for our History.
The They belong, in part at least, to that “metacritic”
supplanting and guesswork which we endeavour to exclude.
of Italy by Indeed, as usually, and more than as usually, in
France.
such case, the old puzzle of “the egg from the Owl,
or the Owl from the egg?” besets us specially in this division of the
History of that Art for which some have had it that the bird of Pallas
is a specially suitable symbol. We can see the importance of the
establishment of the French Academy, when only the first third of
the century had passed, of the extraordinary influence of coteries
like that of the Hotel Rambouillet, of the coincidence of the towering
ambition of a youthful king and the concentrated force of his at least
partially reunited kingdom, with the existence of a remarkable knot
of great men of letters, including one critic of the most masterful, if
not quite the most masterly, type. But can there possibly be any
causation in this latter coincidence? Can we say why Conrart’s
Academy, instead of lasting for a time and then breaking up, became
a national institution? why the Rambouillet blue-stockings were more
influential than those who haunted Mrs Montagu’s peacock-room, or
put rubbish into the Bath-Easton vase? Only by guessing, or by
arguing in stately circle about national temperaments. And we
endeavour to avoid both these things here.[292]
What is certain is, that while on the one hand Italy is scarcely less
addicted to criticism, and scarcely less fruitful of critics, in the
Brilliancy of the French seventeenth century than in the sixteenth,
representatives. and while the authority of Scaliger,
Castelvetro, Minturno, Piccolomini, is felt[293] all over Europe, the
contemporary practitioners of the art exercise no such authority, and
are of almost the least importance. A page for every score that we
gave them in the last Book will nearly suffice in this. In France, on
the other hand, no part of the century is not full of the critical
labour, and no part is without critics to whom, whether we grant the
epithets “good” or “great” or not, we cannot possibly refuse those of
“important,” “influential”—in more than one or two cases even
“epoch-making.” In the first generation we have the half-revolution,
half-reaction of Malherbe, who, for good or for ill, determined the
main course of French poetry for two whole centuries, and great
part of that course for three. In the second we have the similar work
in prose, of Balzac by counsel and example, by example of Descartes
and Pascal; the contest over the Cid, and the purblind but still
intentionally business-like investigations of Hédelin-d’Aubignac; the
constant debates of the Academy: and, perhaps most important of
all, the general engouement for literary discussion of pedant and fine
gentleman, of prude and coquette alike. From the third come the
ambitious code-making of Boileau; the squabble, tedious and
desultory, but in intention at least wholly critical, of the Ancients and
Moderns; the immense collections of Baillet and others; the work,
not bulky but full of germ and promise, of Saint-Evremond, Madame
de Sévigné, Boileau, La Bruyère, Fénelon. What century earlier
(some may say, what century later) will give us, in any country, a
critical galaxy like this, where the stars dart, in at least most cases,
so many other rays besides those of criticism?
It is possible—as the historian of such a subject as this could wish
that it were possible oftener—to do justice to Malherbe’s
undoubtedly prominent position in the history of criticism without
Malherbe. wasting much space on him. The universally known
phrase of Boileau,[294] though containing an
innuendo of the grossest critical injustice, and led up to by a
passage of astounding historical ignorance or falsification, is yet
substantially true. The stage of French poetry which Malherbe
started was a new stage; it was a stage not at once, but before
long, acquiesced and persevered in by all but the whole population
of the French Parnassus; and it cannot be said that seventy years of
almost unceasing effort have done more than partially substitute a
fresh one. Further, it is undoubtedly in favour of Malherbe, though
the compliment may seem a left-handed one, that he was not a man
of commanding genius in any way; that he left no important critical
work; that his creative work is very scanty, far from consummate as
a rule, and by no means all in the style he himself approved; and
that even the secondhand accounts which we have of his doctrines
are scrappy, vague, and indirect. For it is quite clear that a man who
exercises such influence, and exercises it practically at once, in such
circumstances, must have hit upon the right string, must have
coincided strangely with the general feeling, temper, aspirations,
taste of his countrymen. Our documents for these doctrines are an
extensive, but fragmentary, commentary on Desportes (the still more
destructive and characteristic handling of Ronsard seems either to
be a myth or never to have been preserved on paper), the Life by
Racan,[295] some phrases in the Letters, the vivid and admirable
attack of Regnier,[296] and the remarks of writers in his own and the
next generation.
All concur in showing Malherbe to us as, on the one hand, mainly
a verbal critic, and on the other, as verbal critics usually, but by no
means always or necessarily are, singularly unable to rise above the
word, or its nearest neighbour, the mere sense. Both these things
made him the natural enemy (though, for his earlier years at least,
he was a more or less disloyal follower) of the Pléiade. Their
abundant word-coinages and word-borrowings shocked him; he did
not want, and could not feel,[297] the poetic souffle which they
managed to give by means, or in despite, of their vocabulary. Racan,
a rather simple but absolutely honest creature, confesses that his
master n’aimait du tout les Grecs, regarded Pindar especially as a
maker of galimatias, liked Statius and Seneca best of the Latins,[298]
and (it was generous) classed the Italians with the Greeks. On the
other hand, in French, he had at least the merit of knowing exactly
what he wanted, and exactly how to get it. He it was who first
invented those rigid laws of rhyme, which even French classicism
never quite adopted—the proscription of the different use of a and e
in such rhymes as ance and ence, ent and ant; the rule against
simples and compounds of them, and even words which commonly
go together, out of verse, as père and mère. He was equally rigid on
the cæsura: and Racan is not to be suspected of catering for
laughers, though Tallemant might be, when he tells us that, while
actually in the death-struggle, Malherbe revived himself to tell his
nurse that she had used a word qui n'ètoit pas bien Français.
It is, however, in the Commentary on Desportes,[299] and there
only, that we have the real Malherbe at first hand for our purpose. It
The is a very remarkable piece, and the first of the kind
Commentary in modern times;[300] though Gellius and Macrobius
on Desportes. no doubt set a certain pattern for it in ancient. Nor
am I acquainted with anything more thorough in the particular
species; the modern Zoilus, as a rule, is equally inferior to Malherbe
in thoroughness, acuteness, and learning. More than 200 pages—a
large page and a small type—are occupied in M. Lalanne’s edition
(the only one) with the citations and remarks, the former being
rigidly confined to the line or two (rarely more) that Malherbe
annotated. It would be almost worth while to reprint[301] the original
volume as it exists scored by the critic’s hand, and I do not know
that it would be at all unfair to Desportes; for it is not the author
who comes worst out of the exposure.
Whatever may be said against Malherbe, he cannot be accused of
verbiage. He constantly contents himself with a single word—bourre
(“padding”), cheville (“expletive”), or simply note or nota, which
expresses, much more forcibly, the “Will the reader believe,” or “It
will hardly be credited” of our less succinct Aristarchs. It is curious
how sensitive Malherbe’s ear is to certain suggestions of real or
fancied cacophony, or absurdity, in juxtaposition of different words.
There is no doubt that the French habit of delivering verse in a sort
of recitative or singsong, running the syllables very much together,
putting strong emphasis on certain vowels and slurring others,
makes things like the famous “vaincu Loth” and “vingt culottes,”
“vieillard stupide” and “vieil as de pique” less of mere childishness
with them than with us. Malherbe seems to have a perfect obsession
of this kind, especially in the direction of alliterated syllables. Thus
he annotates the harmless line—

“Si la foi plus certaine en une âme non feinte”—

n’en, nu, n’a;

and, still more in the style of the two later jokes—

“Mais vous, belle tyranne, aux Nérons comparable”—

Tira nos nez!

Indeed, he never loses an opportunity of blackmarking this

collocation of letters in different words, a point to which the later
Latin rhetoricians had perhaps made the French specially attentive,
but notice of which, except in the rarest cases, would be thought
unworthy of anybody but a schoolboy (or a comic journalist of not
the highest class) in England.
It was perhaps a little dangerous for Malherbe to be so prodigal of
the words “pedantry” and “stupidity” as he is; while time and use
have sometimes made his peremptory judgments look rather foolish.
For instance, Desportes had used poumons in the plural, as we have
practically always used “lungs” in English. “On ne dit,” says our
usher, with an almost audible bang of the ferule on the desk,—“On
ne dit point qu’un homme ait des poumons: et ne m’allègue pas qu’il
y a plusieurs lobes au poumon, car tu serais un sot.” Poor posterity!
It has been (in France) tolerably docile to Malherbe, but it has in this
respect undoubtedly written itself down an ass—or perhaps him. For
no Frenchman now would hesitate to use the word in the plural. He
is constantly objecting to consommer in the sense of consumer; he
ejaculates (with the sort of indignant bark which we hear so often
from him and from critics of his kind) on

“Et pensant de mes faits l'étrange frénésie”

“Je ne sais si c’est allemand ou anglais: mais je sais bien que ce

n’est pas français”; stigmatises (surely with injustice?) trop injuste
Amour as a mauvais vocatif, and shows his own want of poetic
imagination and poetic sympathy by scouting as bad the beautiful
epithet amoureuse in

“Enflammant l’air d’amoureuse clarté,”

for which some of us would excuse Desportes many worse things

than he has actually done. On the other hand, the mere grammarian
comes out in his note on

“Où de tant de beauté ton œil eut jouissance

Que le seul souvenir chasse au loin ma souffrance,”—
“Le seul souvenir de quoi?”

I should rather like to give more of this; but the reader will no
What can be doubt say Sat prata. We must not be too hard on it.
said for his In the first place, it is (as criticism of the Zoilus kind
criticism. is by no means always) transparently honest
criticism. Malherbe does not garble; he does not foist his own
misconception, not to say his own stupidity, on his author, and then
condemn him for it; he does not, like Boileau, fling offensive and
contemptuous epithets broadcast without anything to support them.
Further, there can be not the very slightest doubt that such an office
as his could, at the time, be very usefully filled. The French sixteenth
century, like our own, had poured, and the early French seventeenth
century had, also like our own, begun to pour, a vast and rather
indiscriminately selected reinforcement of word and phrase and
image into the language. All this wanted sorting, arranging—in some
cases, though no doubt not in so many as Malherbe thought,
rejecting and clearing out. The mere French grammar, which
Vaugelas was soon to write, had not been written; and the Arts
Poetic in existence were, as we have already seen, either technical
and higgledy-piggledy, or like that of Vauquelin (which appeared just
as Malherbe was beginning his crusade, and of which it would not be
uninteresting to have a copy annotated by him as he annotated
Desportes), almost as higgledy-piggledy, and much vaguer, on all
technical points except some of the crotchets of the Pléiade. Indeed,
the best justification for Malherbe is the French poetical history of
the next thirty or forty years. He may claim some, though but little,
of the merit of such different poets as Corneille and Voiture; the
defects, where they really existed, of Boileau’s victims can seldom or
never be charged upon him, and might sometimes have been
avoided by listening to his precepts.
This, I think, is fairly generous as well as just; generosity may now
make her bow and leave justice unfettered; but justice herself need
not go beyond that admirable pronouncement of Regnier, which has
Its defects been already referred to. The great satirist, the
stigmatised passionate poet, could hardly have needed a
at once by personal grievance to spur him on to the
Regnier.
composition of his Ninth Satire, though the
generosity of his character might have induced silence had not
Malherbe broken their friendship. The address to “Rapin[302] le favori
d’Apollon et des Muses”[303] begins by graceful compliments, but
turns soon and sharply on

“Ces resveurs dont la Muse insolente

Censurant les plus vieux, arrogamment se vante
De reformer les vers.”

If we have given Malherbe the credit of being the first modern

critic to play the awful Aristarch with a contemporary in the true and
full Aristarchian manner, Regnier must deserve that of being the first
poet of genius in modern times to undertake a real chevauchée in
His Ninth the interests of the true criticism against the false.
Satire. The Satire is not faultless; there is some divagation,
and an attempt (giving some countenance to the deplorable
excesses, in the opposite direction of insulting poverty, which Boileau
and Pope permit themselves) to set the profits and prosperity of
Desportes against the comparative neediness of Malherbe. But this
neediness was only comparative; and Regnier has the good taste
never to name his adversary, and to let the arrows find their mark
without vulgar personal abuse. The spirit of the piece is delightful;
its straight hitting never baulks the game; and the verse is often of
the very first quality. Read—I only wish I had room to quote—the
passage, which only Juvenal and Dryden have equalled, on
Malherbe’s contempt alike of the Greeks and the Pléiade (20-27);
that on his elevation of the mere vernacular, as the test of language,
which follows; the denunciation of his arrogant assumption of
knowledge as being his own peculiar, which follows that; and the
famous diatribe of forty verses long, and with every other verse a
triumph, which scoffs at the anxiety—

“Prendre garde qu’un qui ne heurte une diphtongue,”

which labels the whole proceeding—

“C’est proser de la rime et rimer de la prose;”

compares it to the tricks of rouging and dressing up in women, and

contrasts the natural beauties of poetry with all this powder and
pomatum.
The first hundred lines are the best part of the satire, and the
remainder is, to a certain extent, amplification and repetition. Yet it
is good art, and good sense, not merely in the scattered phrases—

“Sans juger nous jugeons,”

and

“Votre raison vous trompe, aussi bien que vos yeux,”

and

“O débile raison! où est ores ta bride,”

which hit at once the foible and the forte of the criticism of the
century; but in the final sting—

“Mais, Rapin, à leur gout si les vieux sont profanes,—

Si Virgile, le Tasse, et Ronsard sont des ânes—
 Sans perdre en ces discours les temps que nous perdons,
Allons comme eux aux champs, et mangeons des chardons!”

One might write a whole essay on these wonderfully prophetic and

(no doubt to the writer half-unconsciously) many-sided[304] lines.
After two centuries Europe did “go to the fields”—and she found
something better to eat there than thistles.
For the moment, as we have seen before in other cases, the voice
crying in the wilderness found only a wilderness to cry in. Men could
The contrast not mistake the vigour and verve of Regnier’s verse,
of the two a but they either disregarded his doctrine or
lasting one. misunderstood it. Malherbe was their music-maker
then; they understood him.[305] In the contrast of these two we have
practically a contrast which subsists to the present day, and which
we do not find by any means so sharply accentuated in ancient
criticism—that of the critic who looks only at the stop-watch, and of
the critic who looks beyond it; of the critic of form and the critic of
spirit. But the curious thing is that for the last three centuries the
antagonists have behaved exactly like Hamlet and Laertes, or even
like that puzzling pair in the lower circles of the Inferno. They take
from time to time each other’s parts, each other’s weapons, and
renew the contest with changed persons, or at least rapiers. At first
sight it may seem as if Malherbe and, after him, Boileau were simply
insisting on form and expression; as if Regnier, and those who at
longer intervals have followed him, were those who say that “all
depends upon the subject.” But a more accurate acquaintance with
the History which is to follow will show us that this is far from being
the case. Malherbe had so little opportunity of shaping, or took such
little trouble to shape, his critical ideas that it is perhaps the safer
way not to draw up any complete creed for him, as M. Brunot and
Mr Spingarn have done. But in Boileau, as we shall see, there is a
distinct attempt, which has been practically followed by all of his side
since, to prescribe expression, subject, spirit, and everything—to
insist not merely that the work shall be good, but that it shall be
good according to sealed patterns, in choice of subject as well as in
method, in method as well as in form, in form as well as in
language.
There can be very little doubt that the private discussions which,
as we know from Racan, Malherbe used, for years before his death,
to hold with Racan himself and others, and the letters which he also
exchanged with younger men, had a very great deal to do with the
wide development of criticism in the second third of the century. The
The diffusion fact of this development is certain; it is vouched for
of by the appearance of literary subjects in the Ana,
seventeenth and in Tallemant’s Historiettes, by the foundation of
century
criticism. the Academy, by the Cid quarrel, practically by
almost everything we know of the time that
concerns literature. But we must deal, according to our wont, with
the matter par personnages. Of such personages we have, in the
first place, Vaugelas, Balzac, Ogier, and Chapelain, to whom we may
join Ménage, Gui Patin, Tallemant himself, and the far greater names
of Saint-Evremond and Corneille. Then we can take Boileau—at least
in reputation one of the culminating points or personages of our
history—and the less exclusively critical deliverances of La Bruyère,
of Fénelon, and of Malebranche; can give some account of the
Quarrel—tenacious of life, if scarcely vivacious—of the Ancients and
Moderns; diverge to the scholastic and somewhat dismal but
important performances of La Mesnardière and others, of Hédelin
and Le Bossu, Rapin and Bouhours, and end by some account of the
miscellaneous compilations and observations of journalists and
savants. The matter is abundant in all conscience; it is at least
sufficiently varied, and the real greatness of some at least of the
persons concerned should save it from being insipid.
We may all the better pass directly from Malherbe to Vaugelas[306]
because this is about the last place in this History where we can give
special attention to merely verbal and grammatical criticism. In this
Vaugelas. Malherbe had at least the absolute, and almost
admirable, courage of his opinions. On the one hand
he transfers the prudery of the Ciceronians (v. supra, p. 12) to
French, and will not allow even an analogue such as accroît on the
strength of surcroît. On the other he bars all the delightful Pléiade
diminutives, likes not technical terms, is so horrified at any indelicate
suggestion that his countrymen really need not have ridiculed our
“sho[c]king,” and has a whole black list of “plebeian” expressions.
Everything is to be “according to rule,” and the rule is to be drawn
with as few exceptions as possible—and with as few inclusions.
It is no wonder that Regnier opened the full broadside of his
magnificent poetical rhetoric against this system; and it is only a pity
that nobody less fantastic than Mlle. de Gournay—Montaigne’s fille
d’alliance, and almost the first as almost the oddest of blue-
stockings—took up the parable more practically against it. But the
set of the tide, as we have said, was with him. La Mothe le Vayer, a
little later, in his Considérations sur l’Eloquence Française de ce
temps “transacts,” though he is on the whole on the side of liberty.
And enfin Vaugelas vint, the Savoyard[307] who was to teach France
French. His famous Remarques did not appear till 1647, when he
was fifty-two, and only three years before his death, but the book
expresses work much older.[308]
Vaugelas, to do him justice, has not the “pistolling ways” of
Malherbe. Usage is his standard, but, as in the old jest, the coin is
no sooner in the child’s pocket than he is told not to spend it. It is
good usage only that you must follow; and the goodness of course is
penes nos. It would be neither interesting nor proper here to discuss
Vaugelas’ merely grammatical precepts, but it is permissible to point
out that he, first of all moderns—or at any rate more than any early
modern—contributed to bring about the disastrous idea that
grammar exists independently, instead of being a generalisation,
partly from the usage which even great writers cannot violate, partly
from their own. But it is worth observing that, according to him, you
must not use technical words, popular words, improper words (it is
dreadful to say “breast,” for do we not talk of a “breast of mutton or
veal”?), poetical words in prose, archaisms, neologisms, which last
he hates more than anything else. And when he comes to style,
Purity, Clearness, Sobriety, and so forth are of course his cardinal
virtues.
Jean Guez de Balzac, who, in the rather idle nomenclature of
traditional literary history, has usually been styled “the Malherbe of
French prose,” is on the whole more important in the history of
Balzac. French style than in that of French criticism. He was
not, as we have seen from the phrase quoted
above, by any means an indiscriminate admirer of his correspondent
—in fact, though not exactly a Gascon,[309] he was enough of a
Southerner to feel nettled at the Northern arrogance which
undertook dégasconner la France. But he was himself an ardent
disciple of “purity,” and the principal objection that even posterity
has made to his Socrate Chrétien, his Aristippe, his Prince, and most
of his elaborate Letters, all of which were fanatically admired by
contemporaries, is that they are scarcely more than pieces of
epideictic, with very little substance in them.
These same letters, moreover, contain numerous critical passages;
His Letters. while a whole division of his Works[310] is critical.
The interest, however, of the most literary part of
the Letters, those to Chapelain, as a whole, is not so much on
Balzac’s side as on Chapelain’s; and the subjects of them will, at any
rate in part, be best treated when we come to discuss that (in the
latter part of his own lifetime and since) much-enduring writer. To
Bois-Robert Balzac confides (III. 7) that he only cares for verses as
he does for melons—both must be in absolute perfection if they are
to please him; also that the philosopher’s stone will be found as
soon as the sort of eloquence that he values. The thousand pages of
the Letters are sprinkled with finery of this sort; but better matter is
not very common. The somewhat hollow elegance which the French
allow to be the chief merit of Balzac does not lend itself well to real
criticism: nor, to do him justice, does he much attempt this, even to
men of letters like Conrart, Heinsius, Descartes, or to Chapelain
himself. Sometimes he drops into verbal criticism, as in VI. 57, where
he consents to call Mlle. de Gournay herself traductrice and
rhétoricienne, but not poétesse or philosophesse. The letter to
Scudéry in reference to his attacks on The Cid is very sensible and in
good taste; but (as Balzac indeed generally is) much more ethical
and “gentlemanly” than æsthetic (XII. 20). Even when he writes
directly to Corneille (XVI. 9) about Cinna he cannot get much
beyond elegant generalities as to this Rome being the Rome de Tite
Live. So that it is not surprising, when we come to the Chapelain
Letters themselves (of which, besides a few stray ones earlier, there
are six entire Books, XVII.-XXII.) that although most of them touch
literature, and many contain critical remarks or judgments,[311] there
is little of much interest. Only now and then do we come across such
a refreshment as: “Why, sir, what prodigy do you tell me of? Is it
possible that any one with a drop of common-sense in him can
prefer the Spanish poets to the Italians? and take the visions of a
certain Lope de Vega for reasonable compositions?” (XX. 127). His
remarks on Ronsard and Malherbe, “the Martyr and the Tyrant”
(XXII. 20), are fair, and with room one might extend the anthology.
But on the whole, though Balzac was a very handsome letter-writer,
and could, and did, give all the Frank Churchills of Europe lessons in
that art, he was not very much of a critic.
His set Critical Dissertations quite confirm this verdict. He opens
His Critical them with a great deal about Discipline, Justesse,
Dissertations. Bienséance, the Mean, and the like. He tells us (vol.
ii. p. 537) that any one who likes Ariosto would prefer a Siren to a
beautiful woman—the answer to which challenge may be justly
suspended by the true critic till he has a Siren produced before him.
There might be much to be said for her. He has some not unpleasant
remarks on the obligatory subject of the great sonnet-duel between
Voiture’s “Uranie” and Benserade’s “Job”: but he has not, so far as I
remember, discovered the critical truth that their beauty lies in the
singular charm of the first line of the one and the last of the other.
He is in one place (ii. 597) almost savage with Montaigne, of whom
he says that, though he be adopted father to Mlle. de Gournay,
esteemed by Father Paul, and “allégué par le Chancelier Baccon”
(sic), he can see nothing in his Essays but equivoques and mistakes
of judgment. This, however, is said chiefly in reference to
Montaigne’s Latinity and knowledge of Latin: and elsewhere (pp.
657-662) there is a set judgment much more favourable, though still
smacking of the double prejudice against a prophet of his own
country and a man of the last generation. But his Dissertation on or
against the Burlesque[312] style, when one remembers the excesses
in which, from Scarron down to Dassoucy, men were about to
indulge, is not contemptible: and there are amusing things in his
Barbon, a sort of elaborate Theophrastian portrait of a young
pedant, from which Scriblerus may have borrowed.
Vaugelas, as we have seen, did not finally elaborate his work till
some twenty years after Malherbe’s death, and Balzac, though a
correspondent of the Norman poet, outlived him by more than a
Ogier and the quarter of a century. But in the very year (1628) of
Preface to that death appeared a document on the other side,
Tyr et Sidon. and taking that side in flank at the point where it
was, with the majority, to be most victorious. This was the Preface
of François Ogier to the second edition of the Tyr et Sidon of Daniel
d’Anchères, or rather (for this is a mere anagram) Jean de
Schélandre.[313] The play is almost the only worthy representative, in
French, of that English-Spanish drama which set the Unities at
defiance;[314] the Preface, written twenty years after the first
appearance of the play, but seven before the author’s death, is a
brief but extraordinarily remarkable vindication, in principle, of
Schélandre’s practice. Until M. Asselineau, in 1854, published an
article on the subject, and the Bibliothèque Elzévirienne, two years
later, included both play and preface in the eighth volume of the
invaluable Ancien Théâtre Français, both were practically unknown.
Even then notice of them was for a long time confined to literary
historians; and of late an attempt has been made to put the Preface
aside as the mere freak of a student, in opposition to the taste of
the time and the necessities of the stage. That the general course of
literature in France followed for a time the line which Ogier argued
against, and to which Schélandre ran counter, is perfectly true. But
this is quite indifferent (except as a matter to be registered) to
history, which knows perfectly well that Athanasius and his world are
always changing places and principles. Moreover, it is quite a mistake
to think that Ogier writes merely from the study, and with no
consideration of the stage. Like Cinthio, like Patrizzi, like Castelvetro
himself, he is no mere study-theorist. On the contrary he carries the
war into the enemy’s camp with a refreshing audacity and no small
force. It is the classical arrangement, he says, which offense le
judicieux spectateur, with its improbable and unnatural coincidences
and tallyings. How, he asks, in a passage interesting to compare
with Sidney’s satirical description of the opposite style, do the
identifying rings, the shepherd-fosterers, the good old nurses,
always turn up comme par art de magie exactly at the right
moment? How is it that Creon, and the old attendant of Laius, and
the Corinthian who picked Œdipus up, all rendezvous at Athens in
the nick of time? Is verisimilitude observed even in the Agamemnon?
Is there anything dramatic at all—anything more than sheer
narration—in the Persæ? Can the extreme defenders of the Unity of
Time work out the Antigone on their lines? or the
Heautontimoroumenos? Then he proceeds to account (not at all
badly) for the practice of the ancients, and then to revert to the only
sound argument—that of Cinthio and Pigna in the matter of the
Romanzi, of Il Lasca in reference to Italian comedy—that Athens and
Rome, and the lives and customs of both, are not modern countries
and their lives and customs, that the practice of the one can give no
final and prohibitive rule to the practice of the other.[315]
We are not in the least concerned to argue for this Preface. It is
enough to point out its bold and independent spirit, and to lay
special stress on the fact that Ogier fully admits that he is defending,
if not a heresy, an orthodoxy which is not popular, offers to explain
“pourquoi nous nous sommes jetez à quartier du chemin ordinaire,”
speaks of the Unity of Time as “cette règle que nos critiques veulent
nous faire garder si religieusement à cette heure,” indirectly
condemns the Unity of Place in his arguments, and vindicates the full
tragi-comic blending of Actions. Now, this was in 1628, eight years
before the Cid and the Sentiments de l’Académie, even a year before
Mairet’s Sophonisbe earned the reputation of being the first French
piece that was absolutely “correct.” This is of itself enough to show
how erroneous is the idea, once common and still repeated, that the
discussion over the Cid, with Scudéry for mover, was in the nature of
a surprise, and that Chapelain, if he most certainly did not invent the
Unities, introduced them into France.
Although M. Bourgoin, and one or two others, have done
something of late years to relieve Chapelain himself of the weight—
not so much of obloquy as of contemptuous ignoring—which rested
on him for nearly two centuries, even they have for the most part
lain under that curious fear of Boileau which we shall have to notice
Chapelain: so often. Sainte-Beuve (who knew his French
the seventeenth century as no other man ever has
hopelessness known, or probably ever will know it, and who had
of his verse.
in his own possession the MS. Letters which do
Chapelain not a little credit) takes a kind of apologetic tone on the
subject, and seems never to have made up his mind to treat
Chapelain as a whole. It is, indeed, only on the prose side that he
can be approached without fear of disaster. There are good things
even in the Pucelle, but they are ill to win. You may read Le Moyne,
Desmarets, Saint-Amant, not without satisfaction of the true poetic
sort, especially in the first case. I think I once got through some part
of Scudéry’s Alaric. But the Pucelle has a double touch-me-not-
ishness—of niaiserie, and of what Boileau (for once justly) calls
“hardness”; there is something really impregnable about her. And
the minor pieces—fine as is the Richelieu Ode in parts—hardly save
their captainess.
Chapelain as a critic is quite another person. He still writes
somewhat heavily: and (among his other faithfulnesses to the
Pléiade[316]) goes in the teeth of Malherbe and Vaugelas by his use of
The interest classicised words. But he almost deserves the name
of his of the first properly equipped critic of France in
criticism. point of knowledge: and (shocking as the statement
may appear) I am not sure that he was not the last, till almost
within the memory of an aged man. Not only did he know Italian
literature thoroughly—that was not in his time uncommon for
Frenchmen—and Spanish—that also was not far to seek—but he was
accurately drilled in the theory and practice of Italian criticism. He is
constantly referring to it in his correspondence with Balzac; he (that
is to say, the transparently identical author of the main part at least
of the Censure of the Cid) not merely rests his objections on these
critics, but refers to the controversies over the Gerusalemme and the
Pastor Fido, as he does elsewhere to that between Castelvetro and
Caro. Above all, he, almost alone of his time, knew old French
literature. It has not been noticed, I think, either by M. Feillet, who
published, or by M. Bourgoin, who discusses, his most interesting
and remarkable dialogue, Sur la Lecture des Vieux Romans, that his
devotion to Lancelot was almost certainly one of his debts to
Ronsard. For the Prince of Poets, as we saw, expressly enjoined the
reading of Lancelot and the other romances in order to enrich the
vocabulary.
The blot on Chapelain’s critical record in the general estimation is,
of course, his[317] Censure of the Cid above referred to. Even those
The who admit that critical like other thought is free,
Sentiments and that a critic is not to be sentenced to Malebolge
de l’Académie because he is unfortunate enough not to like the
sur le Cid.
great work of a great man, must acknowledge a
certain striking poetical justice in the spectacle of the censor of the
Cid, for want of correctness, being pitilessly flogged thirty years later
by a correcter than he. Nor, nowadays, do we admit much excuse in
the undoubted fact that this censure was practically forced on the
Academy, and on Chapelain, by the sordid jealousy of Richelieu.
But even in this censure it is possible, even for one who frankly
puts Corneille at the head of all French Tragedy, to acknowledge
some critical merits. The first (not perhaps quite the least) of these
is that it is strictly civil; the second is that, meticulous, purblind,
peddling, prudish—a score of similar epithets if you please—as it is,
it does adopt an intelligible code of critical judgment, and does apply
that code with legal propriety. Moreover, as we have seen, it is quite
a mistake to represent this code as being invented for the occasion—
suddenly foisted upon France to gratify the envy of Scudéry and
Mairet, or the less excusable malignity of Richelieu. The code had
been growing for more than a century; it had been gaining wider
and wider acquiescence every day; the protests against it, however
gallantly made, had fallen practically unheard. Eight years before we
have Ogier explicitly admitting it as the code of nos critiques—as the
accepted opinion. We may be fully entitled—some of us intend, for
us and for our house, to do so, whether entitled or not—to hold the
Unities things vainly invented in two cases, and mischievous, if
exclusively and universally enforced, in the third.[318] We may think
the objections to Corneille’s diction hypercritical, and the objection to
Chimène’s conduct utterly absurd.[319] But Chapelain, and those
about Chapelain, were also quite entitled to think differently, and
there is no reason to believe their opinion feigned, though they
might not have put it so forcibly save to curry favour with the
Cardinal. After all, Corneille hardly disputed their verdict except in
detail; and, whether luckily or unluckily, tried to do as they told him
afterwards.
Chapelain’s other critical exercises are numerous: they are quite
interesting, and there ought to be some accessible collection of
them, for at present they have to be hunted up in half-a-dozen
different books or collections, some of them very hard to get at. It is
Prefaces. probable, though disputed, that he wrote the
Introduction to a translation of Guzman d’Alfarache,
which may have been done in his twentieth year, and in which the
author (according to the Pléiade view) by no means magnifies his
office as translator. He certainly wrote, some years later, the
prefatory panegyric to Marini’s Adone, where he practises, in a
fashion familiar to students of Italian criticism, an elaborate
scholastic division of kinds and qualities, with definitions and
Sur les Vieux connections of them. We need not trouble ourselves
Romans. with his Academic discourse, against Love and for
Glory, which is full of précieuse personification, but pass to his most
interesting works, the Dialogue on the Romances and the critical
Letters. In the first[320] he maintains the case of the Arthurian
romances against Ménage and Sarrasin, not with a thorough-going
championship (that would be wholly anachronistic), but with singular
sense, knowledge, and even, as far as it goes, appreciation. He does
not affect to admire the composition or the style in Lancelot. But he
knows something of the origin (it is extraordinary that he allows it to
be, in part at least, English). He will not allow that, barring style and
expression, there is any necessary gulf between Lancelot and Homer
(wherein he is a hundred years ahead in sense of Blair, who was a
hundred years ahead of him in time), delights (taught to do so, as
we said, by Ronsard) in the vocabulary, and feels and rejoices in the
point of honour (“la crainte perpetuelle qu’ils ont de rien faire et de
rien dire dont leur reputation puisse souffrir la moindre tache”),[321]
their jealousy of their word, their devotion (so different from “our
galanterie”) to their ladies. Quia multum amavit! Moreover, the
document is connected in a rather fascinating manner with another,
[322]
in which the same interlocutors, with others, appear, which
refers to it, and in which not only does Sarrasin confess that he had
been brought by Chapelain to a state of mind different from that
which is to be seen in his Discours noticed below, but Chapelain
himself reinforces his argument with a long citation from, and
discussion of, an episode in Perceforest—that huge and interesting
romance which is almost inaccessible to modern readers, in
consequence of the depraved persistence of modern scholars and
Societies in reprinting the same text in idle emulation of each other,
instead of giving what are practically anecdota.
The Letters (published, with some omissions, by M. Tamizey de la
Roque in 1880, and supplemented fourteen years later by some
more in the Transactions of a learned Society[323]) are crammed with
references to books, and contain not a little real criticism. And lastly,
Letters, &c. the famous list[324] of characterisations of French
men of letters which Chapelain drew up for Colbert’s
use in allotting pensions, though it has been laughed at in parts, is
for its date (some of its subjects, including Molière, had not yet done
anything like their best work) as sound, as sensible, and, at the
same time, as benevolent a hand-list of the kind as you shall
discover in the records of the centuries.
On the whole we may say that Chapelain only wanted the
proverbial “That!” to make a good and perhaps a really great critic.
Not all, though a good deal, of the deficiency must be put down to
the transition character of time, taste, literary diction, and
everything, in midst of which he found himself. The point of critical
genius, the ability to grasp and focus and methodise, must have
been wanting too. But he had knowledge, both of literature and of
criticism; he had obviously catholic, if not unerring, sympathies; he
had acuteness and penetration, if not quite combination and the
architectonic; and he was entirely free from that ill-nature which,
while it may seem to assist the critic, really disables him. Critique
manqué, perhaps, on the whole; but still on his day a critic and no
mean one.
“Il faut observer l’Unité d’action, de lieu et de jour. Personne n’en
doute.” But, out of France at least, and perhaps in it, it is possible
that few people may know, or even doubt, whence this saying
Corneille. comes. It would be an insult to a Frenchman of
letters to tell him that it comes from Pierre
Corneille; long, it is true, after the debate over the Cid, but nearly a
quarter of a century before the close of his glorious, if not too
happy, life. It may be gathered—rather from a long and large
induction than from any single utterance of a person of importance—
that the French do not think very much of Corneille as a critic; it
may be further gathered from this that a man should never submit
his genius. Tu contra audentior ito is the counsel of wisdom. He has
written much the best things that have been written in favour of the
“correct” theory; but its partisans (and small blame to them) suspect
him. They see the eyes of Chimène behind the mask, and they
distrust them—wisely also after their kind.
But we must not rhapsodise here on the admirable poetry of this
great poet, and the way in which the critics not merely, as somebody
said in his own day, ont tari sa veine, but made him in a way false to
it. We have only to do with his actual criticism; and whatever view
we take of the general question, it must be here pronounced great
criticism of its kind. The three Discours, and the series of Examens
which appeared first in 1660, present an almost unique, an
extremely touching, and (to men of English birth) a rather
incomprehensible instance of a man of supreme genius crouching
and curbing himself to obey the tendency of the time and the
dictates of “the wits.”[325] We are not kneaded of this dough. We
cannot even conceive Shakespeare taking a copy of Sidney or going
to Ben, and afterwards constructing dramas as regularly as he could,
or apologising for their irregularity; Milton adjusting Paradise Lost to
Dryden’s views of rhyme; nay, even Dryden himself (who is in some
ways, as we shall see, very close to Corneille) “looking first at the
stop-watch” in any way. But “things are as they are,” and (a great
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