Original URL: http://www.theregister.co.uk/2012/03/29/article_29_working_party_opinion/

'Half baked' Brussels data law fails to thrill

'Regrettable level of ambition', sniff advisors

By Kelly Fiveash

Posted in Law, 29th March 2012 14:58 GMT

Viviane Reding's proposed overhaul of Europe's 1995 data protection law needs clarification and improvement, an independent advisory group urged today.

The Article 29 Working Party, which is vice-chaired by the UK's Information Commissioner Christopher Graham, said it "regrets the European Commission's level of ambition" on data protection rules for police in specific relation to cooperating with judiciary authorities on criminal matters.

It added: "The working party is especially concerned that the directive fails to include important data protection principles such as limiting retention periods, transparency and accuracy of personal data."

The group "generally" welcomed much of Commissioner Reding's proposal, which was tabled on 25 January this year.

But it warned that the overhaul to the legislation needed careful consideration from the council and members of the European Parliament to ensure improvements were made to the draft bill.

Here's one such area of concern for the group:

The Article 29 Working Party is in favour of creating a concept of a one-stop shop for companies with a ‘lead authority’, which is the data protection authority non-exclusively competent for supervision of the processing operations of a controller or processor in all member states.

In addition, a clear obligation for data protection authorities to cooperate and to refer to the consistency mechanism to ensure that the regulation is applied consistently in cases where data subjects in several member states are likely to be affected by processing operations, is welcomed. This will lead to a consistent interpretation and application of the EU legal framework, thus creating legal certainty.

However, in order for the mechanism to be able to function, the manner in which it is decided where a multinational company (whether EU-owned or non-EU-owned) has its main establishment needs to be further clarified. This is important because this definition of main establishment seems to be primarily intended to determine which national data protection authority should be the 'lead authority' in a particular case, or for a particular company.

Furthermore, the consequences on the competences of other data protection authorities need to be clarified. It should in any event be clear that the competence of a lead data protection authority is non-exclusive. This means that the competence of a lead data protection authority is subject to the obligations to cooperate, provide and accept mutual assistance, and make use of the consistency mechanism and act in agreement with other involved data protection authorities.

The working party also highlighted concerns previously raised by Graham, who has labelled Reding's proposal as "half-baked". The group called for an independent assessment of the increased costs involved with saddling national data protection authorities with more duties to enforce the new law.

Earlier this month, the European Data Protection Supervisor - a key advisory body lending a hand in the rewrite of Europe's law for safeguarding information - reeled off its concerns over Reding's draft data protection bill.

It warned that the rules laid out in the justice commissioner's proposal fell short of an all-embracing overhaul of the 17-year-old Data Protection Directive legislation.

The Article 29 Working Party's opinion is available here [PDF]. ®