Select Committee on European Union Twelfth Report

Letter from Elizabeth France, Data Protection Commissioner, to Leigh Gibson, Legal Assistant to the Select Committee on the European Union

  I understand that Sub-Committee E of the European Communities Committee would welcome my comments on the data protection aspects of the above draft Convention.

  The texts of the proposed article on personal data protection seen by my Office seem only to specify and restrict the purposes for which data communicated under the Convention may be used by the receiving Member State. Such a provision seeks to satisfy the second of the provisions in Article 5 of the 1981 Council of Europe Data Protection Convention (Convention 108). From a data protection point of view, the proposed article does not go far in specifying the purpose for which information can be used. The Convention permits co-operation for a range of purposes, but information ought only to be used for the particular purpose for which it was transferred. If purpose specification is not precise, then the rules about data being used only for compatible purposes and being adequate, relevant and not excessive for their purpose are rendered nugatory.

  For comparison, Article 102 of the Schengen Convention says:

    "The Contracting Parties may use the data provided for in Articles 95 to 100 solely for the purposes laid down for each type of alert referred to in those Articles."

  Those further rules on compatibility, relevance and adequacy are part of the full set of data protection provisions found in Chapter II of Convention 108 and other international data protection instruments.

  Again by way of comparison with this draft Mutual Assistance Convention, Article 14 of the Europol Convention required each Member State to take the necessary measures to ensure as a minimum standard of data protection, that level of protection which would arise from the implementation of Convention 108. The Europol Convention could not effectively come into force until each Member State had taken those necessary steps. It is now in force following acceptance that each Member State of the European Union has enacted appropriate legislation.

  I also understand that the data protection article in this current draft Convention has been drafted on the footing that existing Member States will have in force suitable data protection legislation applying to data communicated under the Convention, and that Convention 108 has become part of the acquis. Nevertheless, because this is a Third Pillar instrument I am not clear on what basis EU Member States are required to have data protection legislation applying to all the matters covered by the draft Convention. In the absence of such a comprehensively binding requirement a precise reference to the Convention 108 standard of data protection should be included in this Convention.

  I am copying this letter to the Home Office.

6 March 2000

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