Spying scandal, delays and disagreements hinder progress of data protection reform as summer recess begins in Brussels

As the European institutions in Brussels begin their summer recess, I thought it the ideal time to review progress of the draft Data Protection Regulation and highlight what we can expect when the new Parliamentary session begins in September.

Key vote postponed again
The Civil Liberties, Justice and Home Affairs Committee (LIBE) has postponed a key vote from September to October. The vote will decide which compromise amendments LIBE will put forward for all MEPs to vote on when the European Parliament holds its First Reading vote on the draft Regulation later this year.

LIBE has spent the last couple of months trying to whittle down the 3,000 amendments from MEPs into a package of compromise amendments that the main political parties in the European Parliament can support. LIBE still has work to do on this when MEPs return from their summer break in late August/early September and matters were not helped by a public dispute between the UK Liberal Democrat MEP Baroness Ludford (leading for the Liberal group in the European Parliament) and the German Green MEP Jan Philipp Albrecht (leading LIBE’s work on the draft Regulation).

US spying scandal hardens views of MEPs
MEPs may not accept a lower standard of data protection for European citizens in the draft Regulation than currently exists under the current 1995 Data Protection Directive following the recent spying scandal involving the US Government gaining access to communication records of calls, emails and text messages sent by European citizens (Prism). EU Justice Commissioner Viviane Reding is trying to use the issue as a political lever to try and speed up work on the draft Regulation: “Prism has been a wake-up call. The data protection reform is Europe’s answer.”

Question mark over Safe Harbour Agreement
The European Commission is reviewing the Safe Harbour Agreement and will present its assessment before the end of this year. The Agreement allows US organisations to self-certify that they will meet the data protection requirements of the 1995 Directive and that European organisations can transfer personal information relating to European citizens to such organisations.

Lithuania takes over work on the draft Data Protection Regulation
Lithuania took over the Presidency of the European Council of Ministers from Ireland on 1 July and will chair the discussions in the Council of Minsters on the draft Regulation. The Council of Ministers has been taking a much more business-friendly approach than the European Parliament, which is good news for our industry. After all, the Council of Ministers, the European Parliament and the European Commission all have to agree on a common text of the draft Regulation before it can be passed into European law.

Before handing over the Presidency, the Irish tabled a revised draft of Chapters 1-4 of the Data Protection Regulation, which will reassure direct marketers and any businesses that collects or processes data.

Quite how much progress the Lithuanians will be able to make on the draft Regulation is anyone’s guess. The Lithuanians appear to be giving priority to getting the European economy moving again. They recognise that the draft Regulation is complex and are not prepared to sacrifice the quality of the legislation for a quick fix.

Will the draft Regulation be passed before the Easter 2014 deadline?
Both the European Parliament’s and the European Commission’s five-year terms of office come to an end next year. The European Parliamentary elections are in May/June 2014 so the European Parliament will have to pass the draft Regulation by Easter. The European Commission’s term of office ends in the summer. If it is going to be passed then all the European institutions involved will have to compromise. The danger is that industry will be shut out of any compromise negotiations, as they are conducted behind closed doors between the European Commission, the European Parliament and the European Council of Ministers.

My own view is that Reding has invested too much political capital in this and wants to stand for election as the European Commission President in the next term of office so she will try and get something through. This could well be a short-form revised draft Regulation just fixing the key issues (development of the internet and social media) before work begins on the more detailed aspects in the next term of office of the European Commission and European Parliament.

UK Government calls for more flexibility for individual member states
The UK Government is taking a firm line on the draft Regulation and is negotiating on the basis that the current text may at some stage be implemented into European law, if everything falls into alignment. Chris Grayling, the UK Justice Minister was interviewed on BBC Radio 4’s Today programme on Thursday 18 July and re-stated the UK’s desire for a Directive rather than a Regulation, which would give member states more flexibility over how they interpreted the new legislation. He also re-iterated that the UK wanted to see a balance between protecting an individual’s rights and not over-burdening business, in particular, the costs to businesses of complying with the current proposals in the draft Regulation.