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EU: Data protection proposal in a muddle - member states divided

28 March 2012

The Finnish Council Presidency has sent a desperate Note to COREPER (the high-level committee with representatives from the 25 member states) asking for a decision on the scope of the draft Council Framework Decision on the protection of personal data in police and judicial matters (DPFD, EU doc no: 13918/1/06, dated 31 October 2006).

The member states are divided over the question of whether the DPFD should apply just to cross border exchanges of data and intelligence between them or apply to domestic data protection as well.

The measure has to be agreed unanimously by all 25 member states plus Norway, Iceland and Switzerland. However, 8 have expressed doubts about including domestic laws - Switzerland, Czech Republic, Denmark, Ireland, Iceland, Malta, Sweden and the UK. And 4 "doubt" whether the Treaty on European Union (TEU) provides a legal basis for laying down national laws - Czech Republic, Ireland, Malta and the UK.

The Presidency Note argues that the Commission, the European Parliament and the European Data Protection Supervisor are in favour of the DPFD covering cross-border exchanges and the domestic context. However, though this is correct it should be observed that these three bodies want a measure substantially different to that being drafted by the Council.

The Presidency "compromise" is to suggest all the provisions except Chapter III (covering the transfer of data between member states) should apply to domestic and cross-border exchnages, while Chapter III would apply only "in the context of cross-border".

Three member states "cannot accept" this idea - Switzerland, Denmark and Sweden and three - Germany, Italy and Slovakia - have put down a scrutiny reservation.

Apparently there are additional "concerns" that the draft DPFD does:

"not sufficiently take account of law enforcement concerns"

It is hard to see how the draft DPFD, which has been drafted by a Working Party representing the law enforcement agencies, could get any closer to their demands.

Tony Bunyan, Statewatch editor, comments:

"To have one law on data protection at the national level also covering exchanges between member states makes sense. However, this not the substantive issue which is whether it would properly protect the privacy and personal data of the individual - the current draft clearly would not.

The current Council draft does not incorporate any of the amendments proposed by the European Parliament, the European Data Protection Supervisor or the Conference of European Data Protection Commissioners.

In most instances it waters down the Commission's draft proposal and in some cases would be a step back from the protection given by the Council of Europe's Convention 108 and its additional protocols and recommendations"

Documentation

1. EU doc no: 13918/1/06, dated 31 October 2006)
2. Latest full draft of the DPFD in the Multidisciplinary Group on Organised Crime, 13246/2/06, dated 25 October 2006
3. Statewatch analysis: EU data protection in police and judicial cooperation matters: Rights of suspects and defendants under attack by law enforcement demands
4. For full background and documentation see Statewatch's Observatory on data protection in the EU

Three Council Working Parties discussing the DPFD

It has emerged that although the Multidisciplinary Group on Organised Crime - representing the interest of the law enforcement agencies has been entrusted with re-drawing the Commission's proposal two other Council Working Parties have also been discussing the DPFD.

First, a Council Working Party on Data Protection was convened in March 2006:

"after a long period of inactivity"

which a polite way of referring to the fact the this Council Working Party, set up in 1997, last meet in April 2001 and was abolished in 2002.

This Working Party, comprised of national representatives with a knowledge of data protection, discussed the draft DPFD at its meetings in March and October 2006.

However, we do not know what its conclusions were because no "Outcomes of Proceedings" (Minutes) were prepared!

Second, and quite extraordinarily, the Ad Hoc Working Party on Information Exchange decided to discuss the draft DPFD at its meetings in July and September 2006 - this was because its main concern, the exchange of DNA data between agencies, is in abeyance because the provisions of the Prum Treaty would change the basis of its discussions if it is "integrated" into EU/EC law. See EU doc no: 13493/06.