Select Committee on European Scrutiny Thirty-Sixth Report

4 Protection of personal data processed in the course of police and judicial cooperation



+ ADD 1

COM(05) 475

Draft Council Framework Decision on the protection of personal data processed in the framework of police and judicial co-operation in criminal matters

Legal baseArticles 30, 31 and 34(2)(b)EU; consultation; unanimity
DepartmentConstitutional Affairs
Basis of considerationMinister's letter of 17 July 2006
Previous Committee ReportHC 34-xiv (2005-06), para 2 (11 January 2006), HC 34-x (2005-06), para 5 (16 November 2005)
To be discussed in CouncilNo date set
Committee's assessmentLegally and politically important
Committee's decisionNot cleared; further information requested


4.1 This proposal is made by the Commission in response to the invitation by the Council to bring forward proposals for adequate safeguards and effective legal remedies for the transfer of personal data for the purposes of police and judicial co-operation in criminal matters. We considered the proposed draft Framework Decision on 16 November 2005 and 11 January 2006. We noted that it closely followed the terms of Directive 95/46/EC of the European Parliament and the Council (the Data Protection Directive)[14] and had as its object the determination of common standards for the processing of data in the framework of police and judicial co-operation in criminal matters, as provided for under Title VI of the EU Treaty.

4.2 We noted that the draft Framework Decision used the same definitions of key terms such as "personal data", "processing of personal data", "controller" and "processor" as are used in the Data Protection Directive and that it would not apply to the processing of personal data by Europol, Eurojust or the Customs Information System set up by the EU Convention on the use of information technology for customs purposes.[15]

4.3 In reply to our question about the effect of the proposal on the transfer of data to third countries (such as the United States or Commonwealth countries) or international bodies, the Minister informed us that the exemption proposed in Article 15(6) of the draft Framework Provision[16] appeared to be narrower in scope than that provided for in domestic law under Schedule 4 to the Data Protection Act 1998, and that the Government would be considering whether existing arrangements would need to be amended in the light of this narrower exemption. The Minister confirmed that the rules in Article 15 of the proposal applied only to data which had been transferred from one Member State to another before being transferred to a third country. We asked the Minister for a further account of the Government's assessment of this exception.

4.4 In response to our question as whether it was appropriate to transpose the "comitology"[17] arrangements to police and judicial co-operation in criminal matters, whereby it would be for a Committee, chaired by the Commission, to make determinations of the adequacy of data protection in third countries, the Minister stated that the Government's position was one of rigorous assessment, on a case-by-case basis, of the appropriateness of such arrangements. The Government was also considering whether it was necessary for the proposal to provide for criminal sanctions in the event of intentional infringements relating to the security and confidentiality of processing. We asked the Minister for a further account as to how these concerns were being addressed.

The Minister's reply

4.5 In her letter of 17 July 2006 the Parliamentary Under-Secretary of State at the Department for Constitutional Affairs (Baroness Ashton of Upholland) provides further information on the negotiation of this proposal. The Minister explains that the Council working group has not yet begun its first reading of the provisions to which we drew attention, and that she is therefore not yet able to expand on the comments made in her earlier letter of 30 November 2005.

4.6 The Minister informs us that the first Council working group on the proposal under the Finnish presidency took place on 7 July 2006, and was mainly concerned with a discussion of those parts of the proposal which dealt with the further processing of data received from a Member State. The Minister adds that the United Kingdom has submitted a paper to the working group addressing the question of further processing, and inviting agreement that this question should be considered as a whole. ("Further processing" in this context is intended to refer to processing for a new purpose or processing by a new data controller.)

4.7 The United Kingdom paper raises the issue of sharing data for the purposes of regulatory work, child protection and victim support as being cases where processing might be for purposes other than crime prevention, but which should not be prevented by the Framework Decision. The paper also seeks confirmation from the Commission that domestic "further processing" by competent authorities for purposes other than the prevention, investigation, detection or prosecution of crime would be outside the scope of the proposal. The paper argues that such further processing should be outside the scope of the proposal also where there is an international exchange of data. The paper suggests that, for example, the further processing of data by Member State A of data received from Member State B and originally collected for the purposes of crime prevention, should not be subject to the Framework Decision unless the data was supplied by Member State B for the purposes of crime prevention.

4.8 The Minister adds that the UK received support from many Member States for its paper, and for the proposition that the parts of the proposal dealing with further processing should be considered as whole, but that the time available for discussion was considerably reduced. However, a further meeting has been convened for 25 July and the Minister hopes that sufficient progress will be made to allow her to comment in more detail on the three main issues we have raised in relation to Articles 15 and 18.


4.9 We thank the Minister for this further information on the proposal, and we note that discussions are still at an early stage. We shall look forward to a further account of the consideration of the issues raised by the United Kingdom's paper and to the reply by the Minister to the issues of principle raised in our previous report. Since it appears likely that a further new text of the proposal will be forthcoming after the meeting on 25 July, it would be helpful if the Minister were to deposit that text with an EM.

4.10 We shall hold the document under scrutiny pending the Minister's reply.

14   OJ No. L 281 of 23.11.1995, p.31 Back

15   OJ No. C 316 of 27.11.1995. Back

16   This provides that data may be transferred to a third country notwithstanding the absence of an adequate level of data protection where this is "absolutely necessary in order to safeguard the essential interests of a Member State, or for the prevention of imminent serious danger threatening public security or a specific person or persons". Back

17   I.e. arrangements under Council Decisions under the EC Treaty whereby certain implementing powers are delegated to the Commission. Back

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