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EU: DATA PROTECTION REGULATION: Council of the European Union: LIMITE documents

26 May 2015

Despite the claims of the Council Presidency that it hopes to conclude the negotiations between Member States by the end of June much remains to be agreed:

• Chapter I - Article 2(e) - scope of the General Data Protection Regulation and the Data Protection Directive (LIMITE doc no: 8745-15, pdf):

"a number of delegations expressed concern about the use of the term “maintain law and order” and broadening the scope of the Directive." So two options are proposed:

Option 1:

"Article 1: Subject matter and objectives: 1. This Directive lays down the rules relating to the protection of individuals with regard to the processing of personal data by competent (…) authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties and the prevention of threats to public security.

Option 2, proposed by the UK would read:

"falling within the scope of Chapter 4 or 5 of Title V of Part Three of the Treaty on the Functioning of the European Union." which, for the unitiated, covers "Such competent authorities may include not only public authorities such as the judicial authorities, the police or other law enforcement authorities but also any body/entity entrusted by national law to performing public duties or exercising public powers" In other words covering the maintenance of "law and order"

• Article 6 and recital 40 in Chapter II and Chapter III (LIMITE doc no: 9082-15, pdf) 59 pages with 248 Member State positions or reservations.

• Chapter III and horizontal issues, including Chapter II, Article 6 (LIMITE doc no: 8835-15, pdf) 56 pages with 230 Member State positions or reservations

• Chapter VIII ( LIMITE doc no: 8383-15, (pdf) 73 Member State positions or reservations

Interesting comment on what "partial general approaches" agreements within the Council mean:

"The Council gave priority on achieving progress on the General Data Protection Regulation finding agreement on several partial general approaches between June 2014 and March 20151. These partial general approaches are based on the understanding that:

- nothing is agreed until everything is agreed and future changes to be made to the text of the provisionally agreed Articles to ensure the overall coherence of the Regulation are not excluded;
- such partial general approaches are without prejudice to any horizontal question; and
- such partial general approaches do not mandate the Presidency to engage in informal trilogues with the European Parliament on the text."

• Delegated and implementing acts (LIMITE doc no: 8833-15, pdf) 20 Member State positions or reservations:

The Commission proposal for a General Data Protection Regulation contains 26 delegated acts and 22 implementing acts. In the Presidency compromise text the majority of delegated acts and implementing acts have not been retained or replaced by an alternative, such as a providing more details in the regulation itself or leaving these rules to be worked out in codes of conduct."

• German delegation: Horizontal issues (LIMITE doc no: 8836-15, pdf)

• Applicability of the General Data Protection Regulation to the activities of the International Committee of the Red Cross (ICRC) (LIMITE doc no: 8837-15, pdf):

"The ICRC has indicated that the draft Regulation may give rise to two different concerns. A first concern relates to the effect certain provisions of the draft Regulation may have on the confidentiality of personal data processed by the ICRC.....

The ICRC has referred to the possible impact on confidentiality regarding detainees, where the ICRC may intervene with the detaining authorities to request respect of their obligations under international humanitarian and human rights law. An intervention of this type is likely to provide details of the alleged ill treatment and conditions of detention and is confidential."

See also: See Data bill enters final leg of state-level talks (euobserver, link): "Five chapters remain to be wrapped up in the next few weeks. “We still think this is a reasonable aim and feasible,” said one EU diplomat. The remaining chapters include issues on data subject rights, sanctions, definitions, final provisions, and the complex legal interpretations of implemented and delegated acts (secondary legislation)".