11 Data Protection in the EU
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(33649)
5853/12
+ ADDs 1-2
COM(12) 11
(b)
(33646)
5833/12
+ ADDs 1-2
COM(12) 10
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Draft Regulation on the protection of individuals with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation)
Draft Directive on the Protection of Individuals with regard to the Processing of Personal Data by Competent Authorities for the purposes of Prevention, Investigation, Detection or Prosecution of Criminal Offences or the Execution of Criminal Penalties, and the Free Movement of such Data
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| Legal base | (a) Article 16(2) and 114(1)TFEU; co-decision; QMV
(b) Article 16(2) TFEU; co-decision; QMV
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| Department | Justice
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| Basis of consideration | Minister's letter of 2 May 2013
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| Previous Committee Reports | HC 428-liv (2010-12) chapters 7 and 8 (14 March 2012), HC 86-viii (2012-13) chapter 5 (11 July 2012), HC 86-xxvi (2012-13) chapter 11 (9 January 2013), HC 86-xxxi (2012-13) chapter 7 (6 February 2013) HC 83-iii (2013-14) chapter 15 (21 May 2013)
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| Discussion in Council | See paragraph 11.11
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| Committee's assessment | Legally and politically important
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| Committee's decision | Not cleared; further information requested.
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Background and scrutiny history
11.1 We have set out details of the two proposals and their
overall scrutiny history in our previous Reports.[29]
Both proposals have been kept under scrutiny since we first reported
in March 2012.
11.2 In our most recent Report on the proposals
in May,[30] we considered
the update on the progress of the negotiations that we had received
from the Minister of State at the Ministry of Justice (Lord McNally)
in his letter of 2 May.
11.3 In summary, he confirmed that it was the
Irish Presidency's intention to seek a partial general approach
on the first four chapters of the Regulation at the JHA Council
on 6-7 June but that the UK and other Member States were opposed
to this for the reasons set out in our Report.[31]
As for the draft Directive, the Minister said that was still being
negotiated "article by article" and the Presidency was
not expected to seek agreement on any part of the text by the
end of its Presidency in June. The Minister also addressed other
matters, such as the Government's continuing opposition in negotiations
to the "right to be forgotten" and the need for coherence
between the proposed EU data protection framework and any future
domestic legislation on communications data; his views are set
out more fully in our May Report.[32]
11.4 We shared the Minister's concern that there
should be no premature agreement of a partial general approach
on the Regulation since we thought that, given the overlap between
the proposed Regulation and Directive, agreement should be based
on the coherence of the overall proposed package of measures.
This reflected our previous objections in principle to the use
of partial general approaches as a negotiation tactic on the basis
that it is artificial to close negotiations on one section of
a proposal without agreement on the remaining sections and that
it makes effective scrutiny harder. We requested that the Minister
let us know the outcome of the June JHA Council meeting as soon
as possible and asked him to consider whether the latest text
of the Regulation was sufficiently different to warrant being
deposited for fresh scrutiny.
Minister's Letter of 25 June
11.5 The Minister reports that the Justice Secretary
attended the 6 June JHA Council at which "following consultation
with Member States and strong opposition to seeking a partial
general approach", the Irish Presidency instead tabled for
discussion a "key issues" paper (enclosed with the Minister's
letter), inviting general support for the seven conclusions it
contained.
11.6 Before turning to the content of the paper,
the Minister explains the nature of the opposition to the partial
general approach:
"In advance of the Council meeting we had raised,
along with a majority of other member states, strong concerns
about seeking premature agreement for reasons of (the Commission's)
political expediency. We also stated that, should negotiations
be rushed and the quality of the text be compromised, we risk
a highly prescriptive instrument that could damage business growth
and employment prospects and which could leave the EU uncompetitive
in the global digital economy for years to come. We will continue
to push for 'quality first' in negotiations under the upcoming
Lithuanian Presidency."
The "key issues" paper
11.7 The Minister says that in the paper the
Presidency sought "endorsement" of certain specific
topics in the Regulation including its territorial scope, the
definition of consent, the principles of data processing and public
access to documents, but that some of the topics had not previously
been discussed in the Council working group. The Minister says
of this approach:
"While I consider it is important to engage
constructively, it is clear that none of the text is currently
ready for any form of agreement or even 'general support'. Agreeing
to any form of conclusion on one part of the text at this stage
risks causing difficulties when there are interlinked topics across
different parts of the instrument."
11.8 So instead, the UK, supported by Germany
and France (and in Council by Denmark, Hungary, Slovenia and Austria)
tabled a working document which recognised the significant progress
made by the Irish Presidency but made clear the UK's position
that there could not be final agreement on any part of the text
at this stage of the negotiations. Faced with this joint approach,
the Irish Presidency "concluded only that there had been
significant progress on the 'key issues' in the Council paper
and that discussion had provided a good basis for further work."
Latest draft of the Regulation
11.9 Responding to the question in our last Report
about whether the latest text of the Regulation should be deposited
for fresh scrutiny, the Minister, attaching the latest text of
Chapters I-IV of the Regulation (but without a further Explanatory
Memorandum), does not consider this warranted "since no agreement
was reached in the JHA Council" on those Chapters. The Minister
continues:
"While the text presented at Council reflects
discussions at working group level it will be subject to further
consideration and change when discussions resume on these chapters
later in negotiations. For example, while progress has been made
under the Irish Presidency to incorporate a risk-based approach
to obligations on data controllers, I consider this can and should
go further. We will continue to make the argument for strengthening
the risk-based approach to further reduce the level of burdens
on business and to strike the right balance between innovation
and growth and providing appropriate safeguards to protect citizen's
data."
"Right to be forgotten"
11.10 Addressing our request to be updated on
the negotiations on the "right to be forgotten" and
on whether the Government had been successful in opposing it,
the Minister says that as it was omitted from the "key issues"
paper tabled by the Presidency (in the absence of any agreement
on Chapters I-IV of the Regulation), it will need to be considered
in more detail in Council. The Minister continues:
"While I support strong deletion rights as exists
under current legislation, I do not support the 'right to be forgotten'
as proposed by the European Commission. It is not technologically
possible to remove all trace of data uploaded on the internet
and this 'right' raises unrealistic expectations for data subjects.
Furthermore, the obligation to inform other controllers of a request
under the 'right to be forgotten' should be made clearer. We
will continue to make the case for greater clarity and a more
proportionate approach around this measure in negotiations."
Future progress of the negotiations
11.11 The Minister reports that from the UK delegation's
recent meeting with the incoming Lithuanian Chair of the Council
Working Group it would seem that Lithuania intends to continue
reading "through the text from the point where the Irish
Presidency left off" and has no other specific plans. However,
the Minister says the Government is preparing for the negotiation
to continue to progress equally quickly as under the Irish Presidency,
with the Commission pressurising Lithuania to seek a "general
approach" in Council as soon as possible and certainly by
the end of their Presidency. The Minister continues:
"We have highlighted with the Lithuanian Presidency
a number of topical issues of importance to the UK (risk-based
approach, pseudonymised data and the so-called 'one-stop shop')
and it is our intention to continue to engage with Lithuania in
the coming months on these topics. I will provide a further update
on the Lithuanian's plans and our proposed approach in due course
and certainly before the summer recess."
Conclusion
11.12 We are grateful to the
Minister for updating us on progress in the negotiation of the
Regulation and are pleased that the UK, with the support of other
Member States, was able to avert the agreement of a "partial
general approach" at the 6 June JHA Council.
11.13 We would, in due course, also like to
hear about progress on the draft Directive. Although we think
the Minister's distrust of partial agreement on sections of the
text of the Regulation is laudable, we would ask him to note the
conclusion to our last Report which advocates agreement being
"based on the coherence of the overall proposed package of
measures".
11.14 We look forward to the further update
offered by the Minister before the Summer Recess. When he writes,
we ask him to respond to the following questions based on recent
developments; namely, to what extent:
a) will the UK be arguing that no final agreement
can be reached on the "right to be forgotten" provision
before the Court of Justice has given its ruling (not expected
before the end of this year) in the case of Google Spain,
S.L, Google Inc v Agencia Espaola de Proteccin de Datos (AEPD),
Mario Costeja Gonzlez (Case C-131/12)? We ask this
in the light of the Opinion of Advocate General
Jskinen delivered
on 25 June in which he says that a general right to be forgotten
could not be asserted against search engine providers in relation
to personal data on third parties' web pages; and
b) will the negotiations on both proposals
be affected by the recent allegations concerning the collection
of internet data in relation to EU citizens (and EU Institutions)
by the US with the involvement of the UK?
11.15 In the meantime, both
proposals remain under scrutiny.
29 See headnote. Back
30
See headnote; HC 83-iii (2013-14), chapter 15 (21 May 2013). Back
31
See note 3. Back
32
See note 3. Back
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