Peter Hustinx, the European Data Protection Supervisor (EDPS),
issued his opinion on a proposal put forward in January by the
German Presidency of the EU. The German plan is a revision of a
long-running proposal for sharing data between European police
forces.
The opinion lays out a plan to share data within what is
called the 'third pillar', which means in areas of policing and
national security, while still operating within the limits of EU
data protection law.
The proposal began at the European Commission and must pass
through the Council of Ministers with unanimous approval. The
German version of the proposal was designed to make it palatable to
all Europe's 27 member states, but Hustinx believes that in the
process of becoming palatable it has lost some crucial protections
for citizens.
"The fact that the German Presidency gave a new impetus to the
negotiations is in itself very positive," said Hustinx's opinion.
"However, after a thorough examination of the latest text, the EDPS
is disappointed about the content"
"The text weakens the level of protection of the citizen, since
a number of essential provisions for their protection which were
included in the Commission proposal have been taken out," he wrote.
"The low level of protection afforded by the proposal cannot
properly serve the creation of an area of freedom, security and
justice in which law enforcement information can be exchanged
between police and judicial authorities disregarding national
borders."
Hustinx said that in fact the proposal makes data exchanges
still subject to the national laws it is meant to replace. He also
said that the proposal does not conform to some basic existing data
protections.
"In many aspects the revised proposal even falls below the level
of protection afforded by [Council of Europe] Convention 108. It is
thus both unsatisfactory and will even be incompatible with
international obligations of the member states,"
said Hustinx's opinion.
"The EDPS is well aware of the difficulties in reaching
unanimity in the Council [of Ministers]. However, the
decision-making procedure cannot justify a lowest common
denominator approach that would hinder the fundamental rights of EU
citizens as well as hamper the efficiency of law," he
said.
The proposed Framework Decision on the protection of personal
data is designed to allow police cooperation throughout Europe to
become more widespread and more efficient while protecting the
privacy safeguards already put in place by Europe and national
parliaments already.
The plan has implications for other areas, though, including
some commercial operations. There is significant data transfer
between commercial organisations and police in relation to banking
and air travel, for example; commercial activities come under
Europe's 'first pillar'.
"The growing involvement of the private sector in law
enforcement [means] that personal data move from the first pillar
to the third pillar (like in the case of PNR) or from the third
pillar to the first pillar," said Hustinx, citing the handing over
of passenger details by airlines to authorities as an example.
"Therefore, the EDPS stresses that data protection principles in
the first pillar must apply also to the third pillar."
The proposal also extends its reach to Europol, Eurojust and the
Customs Information System, which Hustinx thinks could put the
whole proposal into legal trouble. "The EDPS has serious doubts
whether the present Council Framework Decision should cover
the activities of the European bodies that operate in the third
pillar [Europol, Eurojust and the Customs Information System]," he
wrote. "At first sight, it seems that a Council Framework Decision
– an instrument which is comparable to a Directive under the
EC-Treaty – is not an appropriate legal instrument to regulate the
rights and obligations of European bodies. There is a serious risk
that the legal basis will be challenged during the legislative
process, or afterwards."
"Many efforts are today invested in developing an area of
freedom, security and justice," said Hustinx in a statement. "We
need to ensure high standards to guarantee both the citizens'
rights and the efficiency in police and judicial cooperation.
Unfortunately, this proposal does not meet the expectations."
