CELEX: 51995PC0375
Language: en
Date: 1995-07-18
Title: Amended proposal for a EUROPEAN PARLIAMENT AND COUNCIL DIRECTIVE on the protection of individuals with regard to the processing of personal data and on the free movement of such data

COMMISSION OF THE EUROPEAN COMMUNITIES
                                                      Brussels, 18.07.1995
                                                      COM(95) 375 final-COD287
                            OPINION OF THE COMMISSION
                    pursuant to Article 189 b (2) (d) of the EC Treaty,
                         on the European Parliament's amendments
                     to the Council's common position regarding the
                                       proposal for a
               EUROPEAN PARLIAMENT AND COUNCIL DIRECTIVE
            on the protection of individuals with regard to the processing of
                 personal data and on the free movement of such data
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                 AMENDING THE PROPOSAL OF THE COMMISSION
                      pursuant to Article 189 a (2) of the EC Treaty
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 ---pagebreak---  ---pagebreak--- 1. BACKGROUND
   (a) On 27 July 1990 the Commission presented to the Council a proposal for a
        Directive (COM(90) 314 final - SYN 287).l
   (b) On 24 April 1991 the Economic and Social Committee delivered its opinion ^
   (c) On 11 March 1992 Parliament delivered its opinion (first reading) and adopted a
        resolution endorsing the Commission proposal, subject to a large number of
        amendments.
   (d) On 15 October 1992 the Commission adopted an amended proposal for a
        Directive pursuant to Article 149(3) of the EEC Treaty (COM(92)422 final -
        SYN 287) 4
   (e) On 20 February 1995 the Council adopted a common position.
   (f) On 24 February 1995 the Commission transmitted to Parliament its opinion on
        this common position (SEC(95) 303 final - COD 287).
   (g) On 15 June 1995 Parliament approved (second reading) seven amendments to
        the common position.
2. PURPOSE OF THE COMMISSION PROPOSAL
   The proposal for a Directive seeks to facilitate the free movement of data within the
   Community by affording individuals a high level of protection with regard to the
   processing of personal data. Harmonization of the relevant national laws has proved
   necessary because of the wide divergences between them and of data-exchange
   requirements imposed by completion of the internal market.
   The White Paper "Growth, competitiveness, employment" and the Bangemann
   group's report "Europe and the global information society" underscored the need for
   the Directive as a regulatory measure within the clear, stable legal framework that is
   essential if the information society is to develop along lines acceptable to the citizens
   of Europe.
   The proposal for a Directive lays down common ground rules for the protection of
   individual rights with regard to the processing of personal data.
   The high-level protection is afforded through the obligations imposed on data
   controllers (for example, public authorities, enterprises and associations) and through
   the rights conferred on the individuals whose data are processed.
   The obligations on controllers relate, for example, to the quality of the data - the
   processing of which must meet a specific and legitimate purpose - to security
   requirements and to the notification of such processing to an independent supervisory
   authority to be set up by the Member States.
      OJNoC277, 5.11.1990, p. 3.
      OJNoC159, 17.6.1991, p. 38.
      OJ No C 94, 13.4.1992, p. 76; OJ Annex, Debates of the European Parliament, No 3/416, p. 133.
      OJ No C 311, 27.11.1992, p. 30.
      OJNoC93, 13.4.1995, p. 1.
                                              2
 ---pagebreak---    The right to be informed under certain circumstances about the processing of data
   relating to them, the right of access to such data and the right to ask for them to be
   corrected if they are inaccurate and even to object to their processing are the main
   rights conferred on individuals by the proposal.
3. COMMISSION OPINION ON PARLIAMENT'S AMENDMENTS
   1. The seven amendments put forward by Parliament are acceptable to the
        Commission.
   2.   Five of them, which relate to the substance of the proposal, make useful
        clarifications to the text.
        Amendment No 1 incorporates into the 41st recital a specific reference to
        business confidentiality as grounds for possibly limiting an individual's right to
        know the logic involved in the automatic processing of data concerning him.
        Amendment No 3 provides in Article 2(d) for the possibility that for a single
        processing operation a number of parties may jointly determine the purpose and
        means of the processing to be carried out.
        It follows from this that, in such a case, each of the co-controllers must be
        considered as being constrained by the obligations imposed by the directive so as
        to protect the natural persons about whom the data are processed.
        Amendment No 4 is intended to make it clear in Article 3(2) that the processing
        of personal data carried out for the "economic well-being of the State" is
        excluded from the scope of the Directive where that operation relates to
        questions of State security.
        In order to do this, amendment No 4 adopts the wording used in the 13th recital
        of the common position.
        Amendment No 5 incorporates into Article 9 a clarification to the effect that
        Member States will have to provide for exemptions or derogations "only" if they
        are necessary to reconcile the right to privacy with the rules governing freedom
        of expression.
        Amendment No 6 is designed to clarify the point that transfers which are "legally
        required" on important public interest grounds escape application of the normal
        rule that the third country of destination must ensure an adequate level of
        protection to enable such transfers to take place.
        Although it is not specified in certain language versions of the text, it seems
        evident that such a transfer could only be considered as legally required where a
        legal act of a public authority applies, notably a law passed by the national
        parliament. On the contrary a simple contractual agreement could not serve as a
        basis for such a transfer.
   3.   The remaining two amendments concern the Commission's implementing powers.
        Amendment No 2 introduces a reference to the "modus vivendi" agreed between
        Parliament, the Council and the Commission on 20 December 1994.
        Amendment No 7 is designed to replace the Ilia regulatory committee with a lib
        management committee.
 ---pagebreak--- A management committee is fully consistent with the nature of the powers
conferred on the committee by the Council common position. Those powers are
limited to transfers to third countries: they cover the appraisal, based on the
criteria set out in Article 25(2), of whether or not there is an adequate level of
protection in third countries (Article 25(3) and (6)) and the adoption of
appropriate measures to authorize transfers to third countries not having an
adequate level of protection (Article 26(3) and (4)).
It should also be pointed out that there is no major difference between the Ilia
committee and the lib committee in terms of powers available to the
Commission. The difference between the two procedures is essentially formal: in
one case (Ilia), the Council decides on the basis of a Commission proposal, while
in the other (lib) it amends a decision which has already been taken by the
Commission but whose effects are suspended. However, the lib procedure is
quicker since it obviates the need for a new procedure within the Commission:
the Commission's decision simply takes effect once the period allowed the
Council has expired.
The Commission very much hopes that the Council will also be convinced by this
procedural efficiency aspect of the matter, which is important for the decisions to
be taken.
 ---pagebreak---                  Amended proposal for a
                     t.
EUROPEAN PARLIAMENT AND COUNCIL DIRECTIVE
   on the protection of individuals with regard to the
           processing of personal data and on
             the free movement of such data
       (presented by the Commission pursuant to
            Article 189a(2) of the EC Treaty)
 ---pagebreak---      Common position of the Council                 Amended Commission proposal
                                         Recital 41
Whereas any person must be able to             Whereas any person must be able to
exercise the right of access to data relating  exercise the right of access to data relating
to him which are being processed, in order     to him which are being processed, in order
to verify in particular the accuracy of the    to verify in particular the accuracy of the
data and the lawfulness of the processing;     data and the lawfulness of the processing;
whereas, for the same reasons, every data      whereas, for the same reasons, every data
subject must also have the right to know       subject must also have the right to know
the logic involved in the automatic            the logic involved in the automatic
processing of data concerning him, at least    processing of data concerning him, at least
in the case of automated decisions referred    in the case of automated decisions referred
to in Article 15(1); whereas this right must   to in Article 15(1); whereas this right must
not adversely affect intellectual property     not      adversely        affect    business
and in particular the copyright protecting     confidentiality or intellectual property and
the software; whereas these considerations     in particular the copyright protecting the
must not, however, result in the data          software; whereas these considerations
subject being refused all information;         must not, however, result in the data
                                               subject being refused all information;
 ---pagebreak--- Common position of the Council           Amended Commission proposal
                          Recital 66a (new)
                                    Whereas an agreement on a "modus
                                    vivendi"    between    the     European
                                    Parliament, the Council and the
                                    Commission concerning the implementing
                                    measures for acts adopted in accordance
                                    with the procedure laid down in Article
                                    189B of the EC Treaty was reached on 20
                                    December 1994.
 ---pagebreak---    Common position of the Council                 Amended Commission proposal
                                      Article 2(d)
d) "controller" shall mean the natural or d) "controller" shall mean the natural or
   legal person, public authority, agency         legal person, public authority, agency
   or any other body which determines             or any other body which alone or
   the purposes and means of the                 jointly with others determines the
   processing of personal data. Where             purposes and means of the processing
   the purposes and means of processing           of personal data. Where the purposes
   are determined by national or                  and means of processing are
   Community laws or regulations, the             determined by national or Community
   controller or the specific criteria for        laws or regulations, the controller or
   his nomination may be designated by a          the specific criteria for his nomination
   national or Community law;                     may be designated by a national or
                                                  Community law;
 ---pagebreak--- Common position of the Council                   Amended Commission proposal
                             Article 3(2), first indent
in the course of an activity which falls -       in the course of an activity which falls
outside the scope of Community law,              outside the scope of Community law,
such as those provided for by Titles V           such as those provided for by Titles V
and VI of the Treaty on European                 and VI of the Treaty on European
Union and in any case to processing              Union and in any case to processing
operations concerning public security,           operations concerning public security,
defence, State security (including the           defence, State security (including the
economic well-being of the State) and            economic well-being of the State
the activities of the State in areas of          when the processing operation is
criminal law;                                    bound up with questions of State
                                                 security) and the activities of the State
                                                 in areas of criminal law;
 ---pagebreak---      Common position of the Council                Amended Commission proposal
                                       Article 9
Member States shall provide for              Member States shall provide for
exemptions or derogations from the           exemptions or derogations from the
provisions of this Chapter, Chapter IV and   provisions of this Chapter, Chapter IV and
Chapter VI for the processing of personal    Chapter VI for the processing of personal
data carried out solely for journalistic     data carried out solely for journalistic
purposes or the purpose of artistic or       purposes or the purpose of artistic or
literary expression which prove necessary    literary expression only if they are
to reconcile the right to privacy with the   necessary to reconcile the right to privacy
rules governing freedom of expression.       with the rules governing freedom of
                                             expression.
                                           10
 ---pagebreak---    Common position of the Council               Amended Commission proposal
                                  Article 26(1) (4)
4) the transfer is necessary on important 4) the transfer is necessary or legally
   public interest grounds, or for the          required on important public interest
   establishment, exercise or defence of        grounds, or for the establishment,
   legal claims, or                             exercise or defence of legal claims, or
                                           tt
 ---pagebreak---      Common position of the Council                  Amended Commission proposal
                    Article 31(2), third, fourth and fifth subparagraphs
The Commission shall adopt the measures The Commission shall adopt measures
envisaged if they are in accordance with which shall apply immediately. However,
the opinion of the committee.                   if these measures are not in accordance
                                                with the opinion of the committee, they
If the measures envisaged are not in shall be communicated by the Commission
accordance with the opinion of the to the Council forthwith. In that event:
committee or if no opinion is delivered the
Commission shall, without delay, submit The Commission shall defer application of
to the Council a proposal relating to the the measures which it has decided for a
measures to be taken. The Council shall period of three months from the date of
act by a qualified majority.                    such communication.
If within three months of the referral to it    The Council, acting by a qualified
the Council has not acted, the proposed         majority, may take a different decision
measures shall be adopted by the                within the time limit referred to in the
Commission                                      previous subparagraph.
                                               12
 ---pagebreak---                                                                   ISSN 0254-1475
                                                           COM(95) 375 final
                                              DOCUMENTS
EN                                                                       08 16
                                     Catalogue number : CB-C0-95-397-EN-C
                                                             ISBN 92-77-92142-0
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