Draft directive data protection in EU police co-operation

By EDRi · September 21, 2005

In the first week of October the European Commission will publish a
proposal for a Council Framework Decision on the protection of personal
data exchanged by courts and police under the Third Pillar in EU Member
States. Statewatch published a draft version earlier this week.

The framework decision will allow the EU to move forward with plans for
full cross-border access to police databases under the “principle of
availability”. The Council has become increasingly eager for a proposal to
be agreed, calling in July for the Commission to present proposals by
October at the latest.

The proposal would create a similar regime to the existing 1995 Data
Protection Directive, which applies to First Pillar (single market)
legislation. It would ensure data is processed for specific purposes for a
legitimate lawful purpose, and that European citizens have the right to
access and where necessary correct personal data held about them by legal
authorities. Supervisory authorities such as the existing Data Protection
Commissioners would be nominated to oversee the national schemes, and
would jointly act as a Working Party to ensure the directive was followed
uniformly across the EU.

While the proposal is a welcome step forward in the protection of personal
data, it contains some areas of concern. Most generally, it contains wide
optional exemptions for Member States, rather than strengthening
protection uniformly across the EU. Article 6, for example, would allow
the exchange of data concerning “racial or ethnic origin, political
opinions, religious or philosophical beliefs, trade-union membership, and
data concerning health or sex life” when provided for by law and
“absolutely necessary” for the “prevention, investigation, detection or
prosecution of criminal offences”. Article 4.3 also allows basic
protections to be set aside by Member States if “exceptionally” “provided
for by law”.

The proposal also affects the personal data of a great many EU citizens:

“- a person who is suspected of having committed or having taken part in a
criminal offence or who has been convicted of such an offence,
– a person who there are serious grounds for believing will commit a
criminal offence,
– a person who might be called on to testify in investigations in
connection with criminal offences or subsequent criminal proceedings,
– a person who has been the victim of a criminal offence or with regard to
whom certain facts give reasons for believing that they could be the
victims of a criminal offence,
– a person who can provide information on criminal offences, and
– a contact or associate to one of the persons mentioned above,” (art.4.4)

Data may also be retained for “historical, statistical or scientific
purposes” (art.4.1b), and stored “to varying degrees of accuracy and
reliability” (art.4.1.d)

EDRI will be undertaking further analysis of the proposal and will call on
the Commission and Council to improve the protection of the extremely
sensitive personal data that it would allow police forces to exchange
across Europe and beyond.

Commission proposal for a framework decision on the protection of personal
data (04.08.2005)

(Contribution by Ian Brown, board member EDRI)