24 Data Protection in the EU
| (a)
(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 16 July 2013
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| Previous Committee Reports | HC 83-viii (2013-14) chapter 11 (3 July 2013), HC 83-iii (2013-14) chapter 15 (21 May 2013), HC 86-xxxi (2012-13) chapter 7 (6 February 2013) ), HC 86-xxvi (2012-13) chapter 11 (9 January 2013), HC 86-viii (2012-13) chapter 5 (11 July 2012), HC 428-liv (2010-12) chapter 7 (14 March 2012)
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| Discussion in Council | Not known
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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
24.1 We have set out details of the two proposals and their overall
scrutiny history in our previous Reports.[88]
Both proposals have been kept under scrutiny since we first reported
in March 2012.
24.2 In our most recent Report on the proposals in July,[89]
we considered an update on the outcome of the June JHA Council
from the Minister of State at the Ministry of Justice (Lord McNally).
In summary, the Minister told us that owing to strong opposition
from the UK and other Member States the Irish Presidency was unable
to seek the intended partial general approach on the Regulation,
instead having to table a "key issues" document seeking
general support on seven "topic area" conclusions. In
the end, the Council conclusions only noted the significant progress
on those key issues as a good basis for future work.
24.3 In the conclusions to our Report, we said we were pleased
that the Government was able to avert the agreement of the partial
general approach and asked about progress on the draft Directive
(noting the need for coherence on the overall package of data
protection proposals). We also requested that the Minister's next
update (expected before the Summer Recess) should include comments
on the impact of two recent developments on the proposals: the
publication of the Advocate General's Opinion in the case before
the ECJ concerning search engine providers (Google, in particular)[90]
and the "Right to be forgotten", and allegations concerning
US internet surveillance (with UK involvement) of EU citizens.
Minister's letter of 16 July 2013
24.4 The Minister first updates us on the current progress of
the draft Directive whilst committing to continuing to keep us
updated in future. He says that:
- negotiations on the proposed Directive for processing in
the field of police and judicial cooperation have been moving
at a slower pace than those on the proposed Regulation;
- the Council working group completed a first read
through in May and the Irish Presidency issued a proposed rewrite
at the end of June;
- the Lithuanian Presidency is likely to use the
rewrite as the basis of future negotiations on the proposed Directive;
- the Government has not yet been notified of when
the Presidency expects to next consider the proposed Directive
in the Council working group;
- the European Parliament is also considering the
proposed Directive, alongside the proposed Regulation, but the
European Parliament's committee vote has been postponed several
times; and
- the European Parliament vote on both the proposed
Regulation and the proposed Directive is now scheduled to take
place in the autumn.
24.5 Turning to the question of the case before the
Court of Justice and the recent publication of the Opinion of
the Advocate General,[91]
he says:
"The opinion highlights the complexity surrounding
the 'right to be forgotten' and also the definition of a data
controller and a data processor. Neither of these issues was included
in the Irish Presidency's 'key issues' paper and have not recently
been discussed in the Council Working Group. I anticipate that
a great deal of further work will need to be undertaken on both
of these topics before agreement can be reached in the Council".
24.6 Finally, on the issue of the allegations concerning
US internet surveillance, the Minister says that nothing alters
the current Government position of wanting to see EU data protection
that protects the civil liberties of individuals while allowing
for economic growth and innovation and providing for the necessary
and proportionate use of data by law enforcement agencies. He
comments further that:
- Article 4(2) TEU provides that
the EU has no competence in relation to national security;
- national security is a matter solely for national
governments and is therefore not within scope of the 1995 Data
Protection Directive, the Data Protection Framework Decision (2008)
or the proposed new Regulation and Directive;
- the most recent working group on the proposed
Regulation, which took place on 3rd and 4th July, did not discuss
the allegations and no new amendments have been proposed to date;
- the US has proposed a separate discussion on
these issues with Member States and arrangements for organising
a high-level group are underway;
- the Government is, in principle, supportive
of discussions between the EU and the US on data protection issues,
but although the Commission has a legitimate role in acting as
the Guardian of the Treaties, and ensuring that EU law has been
complied with, it has no remit in the area of national security;
and
- the European Parliament is also intending to
conduct its own inquiry into the allegations and will report at
the end of the year.
Conclusion
24.7 We thank the Minister for providing this
further information and look forward to being kept regularly informed
on the progress of the negotiations on both proposals. In the
meantime, they both remain under scrutiny.
88 See headnote. Back
89
See headnote; HC 83-iii (2013-14) chapter 15 (21 May 2013). Back
90
Google Spain, S.L, Google Inc v Agencia Española de
Protección de Datos (AEPD), Mario Costeja González
(Case C-131/12). Back
91
See note 3. Back
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