5th Dec 2023

Personal data protection under threat in EU treaty draft

Negotiations on the new EU treaty have thrown up sensitive questions about how citizens' personal data should be kept and accessed in the future.

Under the current draft, agreed in the early hours of a top level summit in June, personal data – such as those of air passengers - could be passed on to third countries without the controlling scrutiny of the European Parliament and the European Court of Justice.

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The article says that the EU Council – representing member states – will lay down rules on the protection of the individual when it comes to the processing of their personal data in the foreign relations area.

"Compliance with these rules shall be subject to the control of independent authorities" says the current wording – leaving out democratic oversight of MEPs and the EU court.

German centre-right MEP Elmar Brok, one of the parliament's representatives on the treaty negotiations, says "it's a small point with huge consequences."

On Wednesday (26 September), he urged member states to re-examine the wording now while everything is on the table or risk having the data protection article cause "huge debate" and controversy when the treaty is completed and going through the ratification process.

"We mustn't give the impression that Europe is being used [with] questions of protection of data disappearing into bureaucratic processes rather than being something we uphold in a democratic European Union," said the German MEP.

The wording came about as a result of British concerns that the EU court's should not have jurisdiction in this area, with the MEP suggesting it was included by technocrats during the negotiations and that EU leaders were "not clear about the implications of the clause."

UK liberal MEP Andrew Duff, a fellow parliament representative in the treaty talks, said that MEPs and the court "ought to be present on such a set of sensitive issues in the security sphere."

The balance between data protection and counter-terrorism measures has been a source of major controversy in the EU over the last years, particularly with regards to the US.

Washington requires up to 34 pieces of personal information from people flying to the US - as a direct consequence of the 2001 terrorist attacks.

Exactly how this information should be stored, for how long and who has access to it has been a thorny long-running squabble between the two sides, with EU civil liberties groups crying foul of the data-sharing arrangements.

The British problem

Speaking about the EU treaty negotiations generally, the MEPs indicated that the UK's opt-outs in several areas were causing the most problems.

Technical experts from the member states are still trying to find wording that suits all.

"The fear of the majority of the member states is that the British could opt in at the start of negotiation on a piece of law, could seek during the course of the negotiation to change its direction or to reduce its force (…) and then at the end of the negotiation opt out," said Mr Duff.

Meanwhile the British fear "they will be excluded from things they would prefer to be included in."

According to the MEP, the experts are trying to get these issues sorted out at technical level so they are not pushed up the political chain of command.

If they are left for EU leaders to deal with, it is feared the summit on 18 October, where they are supposed to give the nod to the new treaty, will be derailed.

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