Electronic ournal ofcomparative La 8.3(october2004),<http://www.ejcl.or Constitution? The principle of individual autonomy assumes that parties enter into contracts voluntarily, guaranteeing them a considerable degree of freedom to enter into contractual obligations. This principle is also recognized in relation to constitutional law, meaning that are accorded protection under the Constitution. Thus, under continental European lay"that freedom of contract even prevails when the contract sees to fundamental human rights that individuals are allowed to waive the protection of their fundamental rights, albeit that the European Court of Human Rights requires that the individual who consents to waiving his fundamental rights does so in an explicit manner. When applied to personal data, the constitutional recognition of privacy thus does not prevent individuals explo iting their privacy rights by using the instrument of freedom of contract. Individuals are free to negotiate the content of agreements to best suit their needs, and to ensure the most efficient exploitation of the economic value of their personal data However, other legal regimes may nevertheless prevent an individual from alienating his rights in personal data. As will be known, the European Union laid down specific provisions as regards the use of personal data in its Directive 95/46/EC.9 An issue that thus remains to be dealt with relates to the intersection between European data protection gislation and the freedom of contracts are contracting parties allowed to depart from the gal framework set under the European data protection Directive-and if so, to what extent? May individuals freely decide whether they want to benefit from the level of protection established by the European legislature, and does the principle of contractual freedom thus overrule the legislative balance in protecting personal data as established at the European evel? Or does the European Directive limit the parties' freedom of contract because it dictates that they should adhere to a certain minimum standard of privacy protection I0 3. Contractual freedom, control rights and the eu personal data directive To answer the above question, we need to explore whether the specific provisions of the European Directive on personal data protection stipulate anything on their mandatory character. In the past, the European legislature has intervened several times in contractual relationships. It has found it appropriate to intervene in contractual relationships in the area of See Deweer/Belgium(ECHR 27 February 1980, A 35 $48-54), De Wilde, Ooms, Versyp/Belgium (ecHr18June1971,A12$65),availableat<http:/wwwechr.coeint/eng/iuDgments.htm>.Seealsoonthese and other relevant rulings, R A. Lawson and H.G. Schermers, Leading Cases of the European Court of human Rights(Nijmegen: Ars Aequi Libri, 1997), at pp 637-638 9 Directive 95/46 of the European Parliament and of the Council of 24 October 1995 on the protect ion of individua ls with regard to the processing of personal data and on the free movement of individuals with regard to the processing of personal data and on the free movement of such data, OfficialJournal L28 1/31,1995 Compare Bergkamp, who argues: "In other words, even if an individual wants to give up some or all of his privacy rights(.g. to obtain a lower price for a product or service), EU law will not let him do so. The EU privacy rights cannot be waived in any matter. Consequently, any agreem ent pursuant to which a data subject waives some or all of his rights under the data Protection Directive is void and unenforcea ble, even if the agreement otherwise meets al the valid ity requirements and is in the data subjects interest, Lucas Bergkamp 3),p.12Electronic Journal of Comparative Law, vol. 8.3 (October 2004), <http://www.ejcl.org/> 3 Constitution? The principle of individual autonomy assumes that parties enter into contracts voluntarily, guaranteeing them a considerable degree of freedom to enter into contractual obligations. This principle is also recognized in relation to constitutional law, meaning that freedom of contract even prevails when the contract sees to fundamental human rights that are accorded protection under the Constitution. Thus, under continental European law, individuals are allowed to waive the protection of their fundamental rights, albeit that the European Court of Human Rights requires that the individual who consents to waiving his fundamental rights does so in an explicit manner.8 When applied to personal data, the constitutional recognition of privacy thus does not prevent individuals exploiting their privacy rights by using the instrument of freedom of contract. Individuals are free to negotiate the content of agreements to best suit their needs, and to ensure the most efficient exploitation of the economic value of their personal data. However, other legal regimes may nevertheless prevent an individual from alienating his rights in personal data. As will be known, the European Union laid down specific provisions as regards the use of personal data in its Directive 95/46/EC.9 An issue that thus remains to be dealt with relates to the intersection between European data protection legislation and the freedom of contracts: are contracting parties allowed to depart from the legal framework set under the European data protection Directive - and if so, to what extent? May individuals freely decide whether they want to benefit from the level of protection established by the European legislature, and does the principle of contractual freedom thus overrule the legislative balance in protecting personal data as established at the European level? Or does the European Directive limit the parties’ freedom of contract because it dictates that they should adhere to a certain minimum standard of privacy protection?10 3. Contractual freedom, control rights and the EU Personal Data Directive To answer the above question, we need to explore whether the specific provisions of the European Directive on personal data protection stipulate anything on their mandatory character. In the past, the European legislature has intervened several times in contractual relationships. It has found it appropriate to intervene in contractual relationships in the area of 8 See Deweer/Belgium (ECHR 27 February 1980, A 35 §48-54); De Wilde, Ooms, Versyp/Belgium (ECHR 18 June 1971, A12 §65), available at: <http://www.echr.coe.int/Eng/judgments.htm>. See also, on these and other relevant rulings, R.A. Lawson and H.G. Schermers, Leading Cases of the European Court of Human Rights(Nijmegen: Ars Aequi Libri, 1997), at pp. 637-638. 9 Directive 95/46 of the European Parliament and of the Council of 24 October 1995 on the protect ion of individuals with regard to the processing of personal data and on the free movement of individuals with regard to the processing of personal data and on the free movement of such data, Official Journal L281/31, 1995. 10 Compare Bergkamp, who argues: ‘In other words, even if an individual wants to give up some or all of his privacy rights (e.g. to obtain a lower price for a product or service), EU law will not let him do so. The EU privacy rights cannot be waived in any matter. Consequently, any agreement pursuant to which a data subject waives some or all of his rights under the Data Protection Directive is void and unenforceable, even if the agreement otherwise meets al the validity requirements and is in the data subject’s interest’; Lucas Bergkamp, European Community Law for the New Economy (Antwerp: Intersentia, 2003), p. 123