Select Committee on European Scrutiny Eighth Report




Draft Resolution on the personal data protection rules in
instruments under the third pillar of the European Union.

Draft Resolution on the principles of personal data
protection in the field of judicial cooperation in criminal
matters as well as police and customs cooperation.

Legal base:
Deposited in Parliament (b) 1 February 2001
Department: Home Office
Basis of consideration: EM of 14 February 2001
Previous Committee Report: HC 28 -i (2000-01), paragraph 3 (13 December 2000)
To be discussed in Council: 28-29 May 2001
Committee's assessment: Legally and politically important
Committee's decision: (a) Cleared
(b) Not cleared; further information requested


  6.1  This draft Resolution takes forward one of the three elements in the Council's current work on data protection under the Third Pillar, namely the question of whether there should be common data protection rules for all activities under Title VI of the Treaty on European Union. The other two elements are consideration of a common secretariat to service the Data Protection Joint Supervisory Bodies established under Title VI instruments, and consideration of whether there should be a single data protection supervisory body to replace such bodies.

  6.2  We considered a Presidency note on the protection of personal data on 14 June 2000,[23] having welcomed and supported the intention to harmonise data protection provision and supervisory control in the Third Pillar. We also cleared one of the elements referred to in that note, namely a draft Council Decision establishing a Secretariat for the Joint Supervisory Data Protection bodies set up by the Europol and Schengen Conventions.[24]

  6.3  We considered an earlier version of the Resolution (document (a)) on 13 December 2000. We found it disappointing and inadequate in a number of respects. In particular, the prohibition on processing sensitive personal data did not appear to us to have been expressed sufficiently forcefully, and the provisions on judicial remedies seemed to us to be inadequate. We asked the Minister of State at the Home Office (Mrs Barbara Roche) for her views on these points and to inform us of any comments made on the Resolution by the Data Protection Registrar.

Document (b)

  6.4  The revised proposal consists of a non-binding Resolution setting out some common principles of personal data protection in the field of judicial co-operation in criminal matters as well as police and customs co-operation.

  6.5  The revised Resolution is in two parts. Article 1 of Title I indicates that the provisions of the Resolution are to apply to all instruments adopted under Article 34(2)(b), (c) and (d) of Title VI of the Treaty on European Union which provide for the processing of personal data, even where such processing is limited to the communication of data. However, Article 2 of Title I provides that every such instrument is to specify which of the principles set out in Title II is to apply. Article 2 further provides that exceptions or amendments may be applied to those principles.

  6.6  Title II of the Resolution sets out the principles. Article 4 provides that personal data are to be collected for specified, explicit and legitimate purposes and should not be further processed in a way incompatible with the purpose for which they were originally collected. Article 5 provides that the processed data must be adequate, relevant and not excessive in relation to the purpose for which they were collected and for which they are being further processed. Article 6 requires personal data to be accurate and kept up to date "to the extent possible and necessary". Every reasonable step is to be taken to erase or rectify inaccurate or incomplete data.

  6.7  In relation to the key matter of the processing of sensitive data there is no express prohibition on such processing, but merely a reference to laying down appropriate guarantees. The matter is dealt with in Article 7 as follows:

    "The appropriate guarantees should be laid down under which it is authorised to process personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs or trade union membership, and the processing of personal data concerning health or sex life."

  6.8  Article 8 provides that personal data which is kept in a form which permits the identification of data subjects should be kept for no longer than is necessary, and that the length of time for which data may be stored should be specified, where possible, especially in the case of sensitive data. Article 9 provides for maintaining the confidentiality of data processing and Article 10 requires appropriate technical and organisational measures to prevent accidental or unlawful destruction, loss, unauthorised disclosure, alteration or access.

  6.9  The rights of access of a data subject are dealt with in Articles 11 and 12. Article 11 provides for data subjects to be informed of the fact that personal data concerning them is being processed, and the purposes for which processing is being carried out. Such information need not be supplied where its provision is "impossible or involves a disproportionate effort compared to the interest involved." Article 12 gives data subjects a right of access to their personal data, including a right to rectification or erasure of incomplete or inaccurate data and a right of erasure of unlawfully processed data.

  6.10  Article 13 provides that the processing of personal data is to be carried out by or on behalf of a controller who is to be responsible for ensuring that the relevant principles are observed. Article 14 provides for a right to compensation for damage suffered by a data subject because of unlawful processing of personal data concerning him. Article 15 provides for monitoring and enforcement of the principles of data protection by independent supervisory authorities of the Member States or common to the Member States, this being "without prejudice to the relevant competencies of national judicial authorities."

The Government's view

  6.11  In her Explanatory Memorandum, the Minister of State at the Home Office (Mrs Barbara Roche) considers the points we have made, together with those made by others. On the question of the general approach of the Resolution, the Minister comments as follows:

    "A number of the points made relate to the generalised nature of the provision made by the Resolution. The European Scrutiny Committee say they find the Resolution disappointing and inadequate, and suggest that it would have been preferable to have followed the Data Protection Directive (Directive 95/46/EC) more closely. JUSTICE suggest that a consequence of the approach followed might be different standards of protection applying to First and Third Pillar bodies, as well as within the Third Pillar itself, and that there might be questions of compliance with the ECHR. They are concerned about the relationship between EU law and national laws. They call for greater specificity about the type of information that may be held; and suggest drawing on Council of Europe Recommendation R 87 (15) on the use of personal data in the police sector.

    "The Government notes these views. The generalised nature of the provision made by the Resolution follows from the objective of the exercise. As the Information Commissioner explains in her memorandum, views about the practicability of having a unified set of data protection rules in the Third Pillar are mixed. Some data protection authorities have pressed for such a set of rules, while others, pointing to the varied nature of Third Pillar activities, have urged caution. The Commissioner says that ' remains to be seen whether a unified set of principles and procedures for all third pillar activities can be developed at anything other than a very high level'.

    "Considerations of this kind led to the current proposal to proceed by establishing a non-binding set of data protection principles established at a general level. There is a widely-shared view among the Member States that the range and nature (including the sensitivity) of Third Pillar activities requires a flexible approach. That can best be achieved by establishing broad, general principles for future Third Pillar instruments to incorporate as appropriate. It will be open to the drafters of those future instruments to make such more detailed provision as is appropriate in the circumstances; and it will fall to them to address questions such as compliance with the ECHR."

  6.12  On the treatment of sensitive personal data, the Minister comments as follows:

    "The European Scrutiny Committee suggest that the prohibition on processing sensitive personal data should be expressed more forcefully. The Information Commissioner suggests following paragraph 2.4 of Council of Europe Recommendation R 87 (15). The Government notes these views. Article 5 of the revised version of the Resolution establishes the principle of proportionality which says that personal data should be 'adequate, relevant and not excessive'. Article 7 requires there to be 'appropriate guarantees' for the processing of sensitive data. Bearing in mind the purposes of this Resolution, the Government believes that, together, these provisions deal adequately with the question of sensitive data. It would be open to future Third Pillar instruments to specify as one of the guarantees required by Article 7 that the data should only be processed if they were 'absolutely necessary for the purposes of a particular enquiry' as suggested by the Commissioner."

  6.13  In response to our observation that the provisions on judicial remedies were inadequate, the Minister makes the following comment:

    "Article 14 of the revised version establishes the right to compensation for damage caused by unlawful processing. Article 15 provides for the principles of the Resolution to be enforced by data protection supervisory authorities. It has been amended to make clear that those authorities' powers are without prejudice to the powers of national judicial authorities. Given the purpose of the instrument, the Government believes that these provisions achieve the desired effect."


  6.14  We are grateful to the Minister for her further explanation of the purpose and effect of the Resolution, and we are pleased to note that the Government will propose the addition to the Resolution of the principle that data processing should be fair and lawful, as well as the addition of criteria governing the use of derogations. Both additions would align the Resolution more closely with Directive 95/46/EC (the Data Protection Directive) and would constitute improvements.

  6.15  Nevertheless, we remain disappointed with the Resolution. It merely describes a number of principles which may or may not be included and which in turn may be made subject to exceptions or amendments. We would therefore be grateful if the Minister would explain further what purpose is served by the Resolution, if it does not contain even the most general of minimum standards.

  6.16  We note the Minister's remarks on the treatment of sensitive personal data in Article 7 of the Resolution, but we ask the Minster to explain further why she believes Article 7 deals adequately with the processing of such data when the provision only requires "appropriate guarantees" to be laid down when such processing is authorised.

  6.17  In relation to the absence of any provision requiring judicial remedies to be available, we note the Minister's remark that Articles 14 and 15 "achieve the desired effect". However, Article 14 depends on proof of damage caused by unlawful processing and is, in any event, a principle which may or may not be adopted. Moreover, it seems to us that all that Article 15 achieves is to act as a saving provision to preserve the existing competence of national judicial authorities, without in any way providing for judicial remedies to be made available. These provisions fall considerably short of what is provided in the Data Protection Directive, and we ask the Minster to explain further why the Government believes such an outcome achieves the desired effect.

  6.18  We look forward to the Minister's reply. In the meantime we clear document (a) on the basis that it has been superseded, but we do not clear document (b).

23  (19836) 5643/99; see HC 23-xxi (1999-2000), paragraph 4. Back

24  (21210) 7381/00; see HC 23-xxi (1999-2000), paragraph 4 (14 June 2000).  Back

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