Wednesday 11 January 2012

The Commission’s 2012 Data Protection Day “present” prematurely scuppered?

The pantomime season continues. I understand that the Commission’s plans to commemorate 2012 Data Protection Day by publishing its proposals for a new legislative framework are unravelling, fast. This is because the results of the Inter service consultation are in. Some of those that have been consulted are really very unhappy with the proposals. Four Directorate-Generals have gone so far as to issue formal unfavourable opinions, which could really slow things down.

For those not in the know, the Inter service consultation process requires each respondent to return a form to the sponsoring Directorate General and check one of three boxes to indicate their high level position on the matter. The options are (1) Favourable opinion, (2) Favourable opinion subject to account being taken of the following comments, and (3) Unfavourable opinion (see attached comments).

Of the unfavourable opinions, DG Trade’s two page reply points out that the proposal “is likely to have a significant negative impact on EU cross border trade”. The European Anti-Fraud Office (OLAF) sent in a six page response focussing on 17 specific aspects of the proposed package. The Information Society & Media Directorate General submitted a 22 page response, making some quite detailed points and recommending a number of specific changes to the text.

Finally, DG Markt prepared a 26 page document outlining their reservations. The language is cold and uncompromising: “In bilateral meetings between DG MARKT and DG JUST your services have highlighted pragmatic and balanced approaches to data protection. However, we considers (sic) the ISC draft in its present form might lead to important and even dangerous consequences for businesses and citizens / users / consumers as main data protection principles would be applied in an inflexible manner without taking into account the context of the processing of information."

This is pretty sensational stuff. And it changes the procedures that now have to be followed before the proposals can be formally published. Basically, the civil servants urgently need to find a compromise with each of these 4 Services, and if they are unwilling or unable to reach a compromise, the issue has to be elevated and referred to the next meeting of the College of Commissioners. Here, political discussions will take place to resolve the issues at the level of the Commissioners themselves. I don’t think they’ll be that happy – especially since I reported in yesterday’s blog that work on revising the current Directive is only prioritised at 42nd place in the Commission’s inventory of 78 outstanding issues.

So, given the fundamental nature of so many of the objections, and the status of the European institutions who have issued these unfavourable opinions, will it really be possible for harmony to break out within the next two weeks? And for a text to be revised that takes full account of these objections?

I think not.

And if I’m right, a number of my learned friends may have to hastily postpone the events they are currently organising to discuss the thing as soon as it appears.

Then again, I did ask back in my blog posting of 26 September 2011 “What comes first? St Valentine’s Day or a new draft DP Directive?”

Applications for copies of these opinions should really be sent directly to the Directorate Generals themselves. Very close friends may get one from me, if they would be so kind as to enclose a bottle of Plymouth Gin with their request.