Analysis: Privacy in the EU draft constitution

By EDRi · July 2, 2003

The draft European Constitution was presented in May 2003. The proposed
treaty contains a section on Fundamental Rights and Citizenship of the
Union. The European Charter of Fundamental rights, which was adopted at the
Nice summit, in 2000, will be an integral part of the treaty (section II,
article 5, paragraph 1).

The right of every individual to the protection of his or her personal data
will be stated twice in the treaty. In Article 36a, it says: “Everyone has
the right to the protection of personal data concerning him or her”, a
phrase which is literally adopted from the European Charter of Fundamental
Rights. Article 8 of the Charter adds: “Such data must be processed fairly
for specified purposes and on the basis of the consent of the person
concerned or some other legitimate basis laid down by law. Everyone has the
right of access to data which has been collected concerning him or her, and
the right to have it rectified. Compliance with these rules shall be
subject to control by an independent authority.”

To those provisions, Article 36a of the Treaty adds an item stressing the
EU Council and Parliament’s obligation to pass the according legislation.
It is worth mentioning, however, that current legislation allowing data
protection to be lifted for a multitude of purposes, mainly in connection
with so-called security issues, is not challenged by these provisions.

As the charter is specifically drafted to bind European Institutions,
article 8 section 3 implies the need for a European Data Commissioner. The
charter does not limit the protection offered by the European Convention
for the Protection of Human Rights and Fundamental Freedoms. as article 52
sec. 3 specifies that any rights that correspond to those already
articulated by the Human Rights Convention shall have the same meaning and
scope. Article 5 paragraph 3 of the treaty states that the European Union
may accede to the European Rights Convention. This is a new development as
the European Court of Justice had earlier advised against accession.

The charter differs from the Human Rights Convention in that it separately
protects data privacy from general privacy. As all EU members are party to
the Human Rights Convention, the draft constitution does not present a
radical change for the protection of privacy. However, the inclusion of a
section on data protection, the possible accession to the Human Rights
Convention, the explicit protection of data and the obligation on
Commission and Parliament to adopt rules relating data protection could be
an improvement for privacy protection as a whole.

Draft Constitutional Treaty for the European Union

(Contribution by Lodewijk Asscher, Dutch legal expert)