Luxembourg, 07/10/2013 (Agence Europe) - Will the data protection reform so dear to Justice, Citizenship and Fundamental Rights Commissioner Viviane Reding be on track by the European elections?
While the commissioner said in Luxembourg on Monday 7 October that she was delighted by the discussion on the one-stop shop and its consistency mechanism, which she saw as general political approval of her reform, other observers are more cautious and still “have difficulty seeing how everything can be completed under this term of office”, as so many points remain to be sorted.
On Monday morning, ministers discussed the system that would allow a national data protection authority to be seen by its counterparts as the competent authority in the event of collective data protection litigation. And while the commissioner claimed there was an “overwhelming majority” backing her principle, the reality is less clear-cut, with ministers giving no clear indication. At the very most, they gave their support (or otherwise) to the various proposals on the table, three in total - one from the Commission, one from Germany and another from France.
For the moment, citizens wishing to bring a complaint against a company must take that complaint to the authority of the country in which the company is headquartered, for example, to Ireland if the complaint is against Facebook, as was the case for Austrian student Max Schrems, who had to travel to Ireland. Under the new system, citizens will be able to contact their national authority and one single national authority will have responsibility for resolving the matter on behalf of all the others. The Commission proposed that the competent authority, which would act for all the others, would be the one of the country in which the company in question has its headquarters. This decision will require an opinion from the European Data Protection Committee for it to be legitimate. And in cases of disagreement, it would be up to the Commission to come to a decision.
Germany has another option and seeks rather to restrict the powers granted to a single protection authority: Berlin says that, in cases of data use involving several member states, the sole competent authority should be the European Data Protection Supervisor (EDPS). For this, however, this committee would have to be endowed with a legal personality and the Commission is not really keen to see that happen.
The third option, that of France, is to leave decision-making to a small group of national authorities concerned, under co-decision. This proposal has not been met with any great enthusiasm. “We could very quickly arrive at a situation where all 28 authorities are involved and having to vote unanimously. We could very quickly come to stalemate”, notes one source. The Commission proposal also seems to have been overtaken by Germany's: “If there was any majority on Monday morning, it was in support of limiting the powers granted to any one authority”, observed another source.
It came as no surprise that the United Kingdom rejected the Commission's position, deeming it unrealisable and warning the Council against hasty decisions which could prove dangerous for citizens, businesses and SMEs. Ireland backed the idea of one single authority acting for all the others, arguing that this would be consistent with the goal of harmonising rules. It did not want French co-decision, and equally rejected giving the EDPS a legal personality. Some considerable way remains to be covered, then, on the one-stop shop and the consistency mechanism and a lot of work still has to be done by the technical group, concluded Lithuanian Justice Minister Juozas Bernatonis. Political agreement is possible in December, however, and would seem to be within reach. “There won't be political agreement on the reform as a whole by the end of the year”, warned a source, pointing to some confusion in what Reding said. Ministers have not come to any decision on the very sensitive issues, such as the right to be forgotten and the scale of sanctions to could be imposed. At this stage, the Commission can count on the unconditional support of only a handful of states - Greece, Spain, Italy, Poland, Bulgaria, Austria and Romania - while support for the French and Germany proposals has not yet been firmed up. This small group, however, could drive forward to an agreement, the Commission wants to believe. (SP/transl.fl)