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The New EDPS: Good News, But More Work To Do

As announced on November 27 on the European Data Protection Supervisor's (EDPS) own website, based on an announcement by the president of the European Parliament, it seems that very soon Giovanni Buttarelli will be officially appointed EDPS, and Wojciech Wiewiórowski will be appointed assistant supervisor. The final step will be signature of the nomination decision by both the Parliament and the Council. The office of the EDPS will thus finally gain the experienced leadership it needs to meet the challenges it will face over the next five years—the term of both positions—following a selection procedure that raises many questions.

As readers of this blog will recall, on January 15 of this year I criticized the way the process was being handled. At that time, none of the short-listed candidates in a procedure originally launched by the European Commission on July 31, 2013, were found to be “suitably qualified” and the procedure was stopped.

The commission then launched a new call for candidates on 28 May, which led to the selection procedure that has now been completed. Thanks are due to former EDPS Peter Hustinx and Mr. Buttarelli, who agreed to remain in their posts until their successors could be chosen.

The result has been that the process to select the head of the EU’s key authority dealing specifically with data protection has been needlessly prolonged by nearly a year. Besides the costs to the taxpayer, the uncertainty caused by this delay has also placed an extra burden on the authority’s work.

At this point, one could say “all’s well that ends well.” But as the Court of Justice of the European Union found in Case C-518/07 Commission v. Germany (9 March 2010), the “mere risk” of political influence on the work of a DPA is unacceptable under EU law (see para. 36 of the judgment). European citizens thus deserve answers to the following questions concerning the handling of the first call for candidates:

  • Why did the European Commission never publish the list of candidates who applied in 2013? The original call for candidates states that “the list of candidates shall be public” (OJ C219 A/4).
  • Why should the finalists to head an independent regulatory authority be evaluated by an outside management assessment service, and why should its assessment be given such importance? The negative opinion that it apparently reached on all the finalists in the first procedure must have had an impact on the decision not to recommend any of them.
  • Doesn’t the fact that the European Commission’s Consultative Committee on Appointments, which made the final decision not to recommend any of the short-listed candidates last January, includes EU institutions that are subject to supervision by the EDPS raise questions about the possibility of political influence on the procedure?

The role of the EDPS will become even more crucial once the proposed EU General Data Protection Regulation is finally adopted. As the likely secretariat for the proposed European Data Protection Board, the successor to the Article 29 Working Party, it will have significant influence on how the regulation is interpreted and implemented.

It is thus important that the selection procedure for the EDPS be strengthened to remove the possibility of political influence, in order to preserve its independence and to ensure that this kind of situation does not occur in the future. The way that the procedure has been handled over the past 18 months demonstrates that data protection regulators in the EU must be sufficiently independent, and must be given sufficient resources, to meet the challenges that lie ahead.

Top image: Giovanni Buttarelli speaking at the IAPP Europe Data Protection Congress 2014, in Brussels, Belgium.

Written By

Christopher Kuner

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