After three and a half years of intense negotiations, EU ministers finally agreed to a general approach on their version of the proposed General Data Protection Regulation at a meeting of the Justice and Home Affairs Council in Luxembourg on Monday.
This clears the way for trilogue negotiations to begin on June 24 with the Council of the European Union and the European Commission looking to finalise a compromise text with the European Parliament by the end of 2015. Parliament rapporteur Jan Philipp Albrecht issued a statement looking forward to the negotiations and similarly called for agreement by the end of 2015.
Credit should be given to the Latvian Presidency of the Council for reaching this general approach. No longer did the traditional refrain of “nothing is agreed until everything is agreed” need to be recited at the conclusion of these discussions. Indeed, the Presidency had pushed the member states hard to work out a compromise text through numerous meetings of the DAPIX working group, and JHA Counsellors ahead of this meeting. This ultimately saved the ministers from an all-night meeting to reach final agreement as was previously threatened when they last met in March.
What emerged from these discussions was clear political momentum in favour of concluding the text by the end of 2015. Agreement by the ministers sent a strong message to the European Council (member state heads of government) that the data protection reform package would be delivered by their December 2015 deadline, which was set back in October 2013 following the Snowden disclosures. EU Justice Commissioner Věra Jourová said the reform was needed to boost the digital economy and it’s clear this reform is needed to support the delivery of the EU Digital Single Market while maintaining strong data protection rules for citizens.
In the spirit of compromise, other ministers supported the general approach while acknowledging outstanding areas of concern. Germany’s Thomas de Maizière asked his colleagues to support the text as it stood and hoped that the Commission would not resort to its original proposal, which had proved problematic for some member states, particularly in allowing flexibility at the national level for the public sector. Christiane Taubira from France also endorsed the Presidency’s approach but noted the need to ensure that sanctions were enforced if the new rules were not complied with.
[quote]The incoming Luxembourg Presidency will go into trilogue knowing that there is genuine political will to bring about reform by the end of 2015.[/quote]
Not every minister gave such straightforward endorsements of the general approach. Lord Faulks from the United Kingdom emphasised the need to ensure that SMEs are not disadvantaged by the rules and queried the complexity and cost of the One Stop Shop, as did Ireland’s Dara Murphy, who also highlighted the need to support a risk-based approach to obligations on data controllers.
Lord Faulks also noted that the meeting fell on the 800th anniversary of the signing of the Magna Carta. He argued that some basic rights remain timeless despite the digital revolution that determined just twenty years on that Directive 95/46/EC was no longer in step with the modern era.
In some ways, this meeting was a rerun of the March Council in terms of concerns raised. As was alluded to in March, Austria and Slovenia decided not to back the general approach. Each claimed the controversial Presidency amendment to Article 6(4) disproportionately extended the grounds for further data processing to include the legitimate interest where the rights of the data controller did not override the interests of the data subject. The two member states viewed this as a red line. Some others member states such as Spain, Poland, Italy and Belgium also raised concerns that this amendment would result in a weakening of the level of protection set out in Directive 95/46/EC.
Article 6(4) will undoubtedly be a key discussion point in trilogue with the Parliament likely to oppose this more liberal ground for processing, potentially with the support of the European Commission. Looking ahead, other areas of contention in trilogue are likely to include the so-called anti-FISA clause, the type of consent required (explicit or unambiguous) and the maximum level of fines, which the Parliament wants to set at €100 million or 5 percent of global turnover, whichever is higher.
These will be difficult points to resolve, but Luxembourg’s Justice Minister Félix Braz, in his closing intervention, said that after several years of tricky negotiations the Council was taking an important step. The incoming Luxembourg Presidency will go into trilogue knowing that there is genuine political will to bring about reform by the end of 2015. All reservations expressed by member states will be kept in mind, but it was the firm intention of the Presidency to wrap up reform by the 2015 deadline set by the European Council.
The next six months will involve a lot of hard negotiations, but as this meeting of the Council demonstrated, where there is the political will to reach agreement, deals can be done.
Photo Credit: Gatis Rozenfelds - (C) EU2015.lv.