Daily Dashboard

European Council Calls for Cost Assessments on Proposed Changes to Directive

February 25, 2011

The European Council has shared its opinion on the review of the European Data Protection Directive. During meetings yesterday and today in Brussels, council officials expressed general support for the review while also outlining areas of concern and further study.

The European Council comprises the national governments’ justice and home affairs ministers.  It is one of several entities that have weighed in during the consultation period on the European Commission’s proposed review of the 1995 Data Protection Directive. The Article 29 Working Party issued its opinion  last month.

Patrick Van Eecke of DLA Piper in Brussels told the Daily Dashboard that the European Council agrees with the European Commission’s stance that the directive’s basic principles are still valid, but that there is a need for fine tuning in order to address technological and business developments.

Concerns about costs

While the European Council generally supports the review, Van Eecke says “it seems to be concerned about costs of compliance.”

The council has advised the European Commission to conduct cost analyses of the proposed changes before actually making them, Van Eecke says. “What the council is saying is that proposing privacy by design, for example, is good, but first find out what the costs would be for companies to do it.”

On minors, seals and sensitive data

The council has also urged the European Commission to pay special attention to minors to make sure they are receiving data protection notifications in a way that makes it easy for them to understand what is happening with their data.

“The council put a lot of thought into the proposal,” Van Eecke says. “The ministers really tried to consider things that were not taken into account by the commission.”

For example, the council proposes adding categories under the term “sensitive data.”  The council wants biometric and genetic data added under this umbrella.

The council also expressed support for the use of privacy seals.

“This is important,” Van Eecke says, “because it brings us closer to a kind of certification scheme. Although seal programs would be self-regulatory, they would serve to compel companies to comply.”

The council wants such programs to be developed in conjunction with industry stakeholders.

Applicability and oblivion

The council also asked the European Commission to take a closer look at the applicability of law within the European Union. Currently, it is not clear which national law applies to a data processing activity, and this is “a big concern for the council,” Van Eecke says.

In addition, the council wants the commission to further explore the proposed introduction of a “right to be forgotten.”

Free access and harmonization

The European Council expressed support for the existing right of access to data collected, but it wants the commission to include an explicit reference in the revised directive that this access should be free of charge. 

Finally, the council noted that member states’ data protection authorities support the harmonization of data protection rules. They want more cross-border cooperation and synchronization of sanctions in order to clear up legal uncertainties for companies operating on a pan-European basis.

Next steps

Van Eecke says that now the European Commission will conduct an impact assessment and will issue a resulting report, which is expected in the May-June timeframe.