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Where Next for the Draft Data Protection Regulation?

20 November 2013
EU Draft Data Protection Regulation - LIBE Committee Amendments
Where Next for the Draft Data Protection Regulation?

The EU’s Work on Data Protection Reform continues following the vote of the EU Parliament’s Committee on Civil Liberties, Justice and Home Affairs (LIBE) on 21 October 2013 to adopt compromise amendments. The 104 compromise amendments represent a consolidation of proposals submitted by various European Parliament committees. Following up on our initial report, Hogan Lovells has prepared a detailed analysis of the compromise amendments approved by the LIBE committee. 

The approval of these amendments represents a significant milestone in the progress of the legislation, the amendments now framing Parliament’s negotiating position with the Council of the European Union and the European Commission. As part of the LIBE vote, the Rapporteurs guiding the draft Data Protection Regulation and the separate directive for the law enforcement sector through the Parliament, Members of European Parliament Mr. Albrecht and Mr. Droutsas, have also been given a mandate to begin negotiations with the Council under the trilogue procedure. Use of the trilogue procedure enables the institutions to negotiate informally upon legislation subject to the EU ordinary legislative procedure, with a view to more legislation being finalized at the first and second reading stages.

Despite progress in Parliament and the assumed start of trilogue negotiations, it remains unclear how quickly the reform can complete the EU’s ordinary legislative procedure.

Press reports following the Council meeting of ministers on 24/25 October 2013 suggested that the timetable for data protection reform had been extended, from Spring 2014 to 2015. Much significance has been attached to the differences between the draft conclusions circulating before the meeting and the final form, which omitted mention of the target of Spring 2014, instead wrapping-up “the timely adoption of a strong EU General Data Protection framework and the Cyber-security Directive” with the completion of the Digital Single Market by 2015.

However, an unnamed EU official later downplayed the differences between the draft and final texts:  “The inclusion of the word ‘timely’ allows now all Heads of State and government to go home and interpret this in their way: the majority (Tusk, Hollande, Letta) can say: ‘timely means now, before the European Parliament elections next May’, while Cameron can say: ‘not before 2015′."

The Council has already considered various elements of the reform package in committee: detailed discussions in 2012/2013 led to the circulation by the Irish Presidency in May 2013 of a revised draft of Chapters I-IV of the Regulation; as we reported in early October 2013, recent debates by the Justice and Home Affairs (JHA) committee have focused on the “One-Stop-Shop” principle and an increased role for the European Data Protection Board. The next meeting of the Council’s JHA committee is scheduled for 6 December 2013, when more progress is expected to be made towards adopting a negotiating position, known as a “common approach.” If work within the Council is not sufficiently advanced for it to agree on a common approach at that meeting, at least by then the negotiating position of individual Member States on the reform package should be more defined, permitting an assessment of the political resolve behind the initiative. Known opposition from the UK, Sweden, Czech Republic, and Hungary to the reform is unlikely to prevent the necessary qualified majority being achieved by the Council. Trilogue discussions can commence before the Council itself agrees on its common approach.

In the meantime, before the LIBE committee voted to approve the negotiating mandate, Mr. Albrecht made clear that the proposed plenary vote in Parliament would proceed in April 2014, before the end of this Parliamentary term, irrespective of the outcome of the trilogue process. He explained that the Parliament wished to give Member States a chance to reach agreement before the elections, but that a failure to agree would not result in the Parliamentary vote being postponed. Depending on progress made in the trilogue discussions, the plenary vote might be on the results of the trilogue negotiation, complete or incomplete, or on the LIBE committee amendments.

For our detailed analysis, click here.

Special thanks to Biddy Wyles for her substantial assistance in the preparation of this entry.

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