By Maryant Fernández Pérez

At the end of October 2016, the European Commission presented its programme for 2017 “delivering a Europe that protects, empowers and defends”.

The new programme highlights 21 key political initiatives and 18 Regulatory Fitness and Performance reviews (REFIT). The programme also contains an overview of the pending proposals from previous years that need to be prioritised this year.

The good

A positive point about the programme is that the Commission commits to make sure “existing European laws are properly applied and enforced and remain fit for purpose”. For example, the Commission states it will ensure the “same high level of protection of personal data to the European institutions, bodies, agencies and offices” and “explore” new high-standard adequacy decisions. This is of particular importance as the Commission has failed to do so in the past. For instance, after the Digital Rights Ireland case before the Court of Justice of the European Union (CJEU) EDRi showed that several Member States were not complying with the court judgment. However, the Commission decided to merely “monitor” what was happening. The Commission did not bring any legal actions against Member States that were in violation of the Charter of Fundamental Rights of the European Union. In 2015, the Commission told EDRi that it didn’t do so because of the existing legal proceedings. Now that the CJEU ruled in favour of fundamental rights in the Tele 2 and Watson et al. case, we are waiting for the reaction of the Commission. Will the Commission do better this year and follow its 2017 Resolution to ensure EU law is properly applied and enforced? It is far from clear whether it possible to be a “political Commission” as this one proclaims to be, and engage in the kind of neutral, evidence-based that the current work programme promises.

Another piece of good news is the Commission’s resistance to calls to repeal the e-privacy Directive, as requested by lobbies representing certain large businesses. We believe that in order to promote trust, privacy and innovation, the reform of the e-Privacy Directive can and should bring significant improvement to users’ rights.

The bad

The first proposals of the year in the so-called “Data Protection package” failed to respect the Commission’s above-mentioned promise. This is the case of the e-Privacy Directive proposal and the Communications on the Data Economy and Data transfers, which risk undermining some of the achievements of the GDPR.

On the other hand, the Commission stated in its work programme that the “right to security can never compromise the respect of other fundamental rights, including the right to personal data protection”. Despite this statement, there seem to be no plans to re-open the flawed draft EU Terrorism Directive.

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The ambiguous

The Commission set entering into “a reasonable and balanced free trade agreement with the US” (Transatlantic Trade and Investment Partnership, TTIP) as a priority, but the action points listed in the annexes do not mention TTIP. While the work programme contains a lot of initiatives and priorities, the Commission stated that it “can also take unplanned initiatives in response to events throughout the course of the year which require urgent action at European level”. What will they be?

Ultimately, the question is whether this self-avowed “political” Commission avoid being pressured by certain Member States into unwise actions as a result of policy-based evidence-making? Is it possible to be a political Commission and focus effectively on delivering “a Europe that protects, empowers and defends”.

European Commission’s Press release: Juncker Commission presents third annual Work Programme: Delivering a Europe that protects, empowers and defends (25.10.2016)
http://europa.eu/rapid/press-release_IP-16-3500_en.htm

REFIT – Making EU law simpler and less costly
http://ec.europa.eu/info/law/law-making-process/overview-law-making-process/evaluating-and-improving-existing-laws/reducing-burdens-and-simplifying-law/refit-making-eu-law-simpler-and-less-costly_en

The judgement on Joined Cases C-293/12 and C-594/12 http://curia.europa.eu/juris/document/document.jsf;jsessionid=9ea7d2dc30d5c1bf9d708375477ab19fb26c295ad4b0.e34KaxiLc3qMb40Rch0SaxyKc350?text=&docid=150642&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=171930

The judgement on the Joined Cases C-203/15 and C-698/15
http://curia.europa.eu/juris/liste.jsf?num=C-203/15

EDRi: e-Privacy Directive revision: An analysis from the civil society (06.07.2016)
https://edri.org/epd-revision-analysis/

EDRi: European Union Directive on counterterrorism is seriously flawed (30.11.2016)
https://edri.org/european-union-directive-counterterrorism-seriously-flawed/

(Contribution by Romina Lupseneanu and Maryant Fernández Pérez, EDRi)

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