The future of personal data protection in the EU – should we be afraid of it?

Katarzyna Stachyra

larson-jewelers-fingerprint-engraving-ringCurrently binding Directive 95/46/EC of the European Parliament and of the Council on the protection of individuals with regard to the processing of personal data and on the free movement of such data celebrates its 20 birthday. Let’s imagine, how during last 20 years our lifestyle has changed. Today we have full of doubts, when we entrance fitness club thanks to fingerprint scanning. Then, after that without any resistance, we take selfie and share it with our friends. It is hard to believe but two decades ago there was no social media! Therefore questions about the future of personal data protection are valid as never before. The EU tries to face new challenges and work on new legal act on personal data protection – regulation, which would replace directive mentioned above. But it’s too early to celebrate success.

What is worth supporting

‘Google case’ (https://europensblog.wordpress.com/2014/05/19/right-to-be-forgotten-google-case/) showed how works differentiate between two legal orders. Certainly, from legal point of view it is clear why judgment of the Court of Justice of the European Union is binding only for EU member states. However, Google’s position, expressed outright, that ‘right to be forgotten’ may be enjoyed only by some of Europeans, not by clients living in the USA, arouses disgust. Despite the EU can’t improve their situation, it may do it with ours. Project of new regulation assumes, that even if company is registered in the third state it has to act in compliance with EU law, if its processing activities are related to the offering of goods or services to such data subjects in the EU. As a results, protection of our data will be strengthened. Moreover, regulation contains new terms, such as ‘biometric data’ and also refers to children’s personal data protection.

What is criticized

Skeptics remind us, that work on content of regulation lasts too long – 3 years. During this time, draft was changed many times and lost its original character. There were arguments between EU member states, EU institutions, which take part in legislative procedures, between NGO’s in member states, etc. It is said that Council of the EU’s amendments lead to weaken standards of protection, especially ‘sacred’ principles connected with purposes of processing and individual’s consent for processing.

Source: viaresource.com

Source: viaresource.com

People awareness and their freely, explicit consent for processing is, in opinion of a lot of NGOs focused on right to privacy , the key point of all personal data protection issues. In addition, some of them are against solutions which would empower entrepreneurs through liberalization of new law. According to NGOs, it creates a risk of abuse and increase of disparities between company and natural person. On the other side, we can’t ignore entrepreneurs’ reasons – their claim that reduction of formalities is needed in order to accomplish functioning of the EU’s single market.

Is it really the future?

Despite some advantages and disadvantages mentioned above, the question is, whether this is a real reform or rather just an introduction of a few changes. European Commission at the very beginning in 2012, sought to propose legal act, which would be an answer to current problems with personal data protection. Now there are doubts, not only if planned changes are revolutionary, but also if they would have adverse effects and weaken relatively high, in contrast to the USA, European standards of protection. It is uncertain, how long will we have to wait for entering into force new regulation and which other, now unfamiliar problematic issues will arise.

I am the European Ombudsman – how can I help?

Magdalena Styrnik

It is a common knowledge that being  a citizen of the EU’s  or any kind of legal person with a registered office in the EU may cause some problems. The complicated structure of the institutions which should be in service to all of us, may sometimes create situations exceeding our ability to solve them.In such a case European Ombudsman can support us.

Current European Ombudsman, Emily O'Reily( Source: www.ombudsman.europa.eu)

Current European Ombudsman, Emily O’Reily (Source: http://www.ombudsman.europa.eu)

The history

Ombudsman is an institution created in Sweden in 1809. At that time, it’s obligation was a simple control of administration’s activity. In 20th century many European countries appointed their public advocate (for example Finland, Denmark and Poland) as an independent office, separated from the judiciary and administration.

The European Ombudsman was established by the Maastricht Treaty in 1992.  The first one elected by Parliament in 1995, was Jacob Söderman of Finland, the next one, elected in 2003 was Nikiforos Diamanduros of Greece and currently (from 2013) Emily O’ Reily of Ireland is in charge.

Basic task of the Ombudsman is to hold EU administration to account by investigating complaints. Important issue, that we have to remember about, is that these complaints only should concern the EU administration, not national, regional or local ones even if it’s connected with EU matters.

Legal basis of election and activity of European Ombudsman

Source: lubinextra.pl

Source: lubinextra.pl

According to art. 228 of The Treaty on the Functioning of the European Union (TFEU) the Ombudsman is elected by European Parliament (EP), right after each election of EP for the duration of its term of office and can by elected again. The Ombudsman can be dismissed by the Court of Justice at the request of EP under particular circumstances named in para. 2 of the same article.

Although Ombudsman is completely independent while performing its duties, which means that he cannot seek for any instructions, for example from the government and that he should not be engaged in any other occupation during his term of office, he has to submit an annual report to EP.

European Ombudsman may conduct inquiries in two different ways : on his own initiative or on the basis of complaints submitted directly to him or through a Member of EP. If the Ombudsman decides that any case is a maladministration, he gives an institution in question, or any other named in art. 228 of TFEU three months’ period to inform about its standpoint. The next step is  sending Ombudsman’s report to both EP and institution concerned. Person who filed  the  complaint is also informed of the outcome of the inquiries.

It’s also worth to note that the Ombudsman is not on his own in fulfilling obligations. Together with European Parliament’s Committee on Petitions, European Ombudsman forms the European Network of Ombudsmen.

Need help? Make a complaint to European Ombudsman

Basing on art. 20 para. 2 point d of TFEU, citizens of the EU have a right to apply to the Ombudsman. That right is also confirmed by art. 24 of TFEU.

If you happen to perform this right you should be aware of many important issues:

1)      The Ombudsman may find maladministration if an institution fails to respect fundamental rights, legal rules or principles, or the principles of good administration, which means that the ECJ acting in its judicial capacity, falls outside Ombudsman’ s mandate

2)      Complaints shall cover for example : administrative irregularities, unfairness, discrimination, abuse of power, failure to reply, refusal of information and unnecessary delay

3)      You do not have to bepersonally affected by the EU’s institution wrongdoing to make a complaint

4)   Time is also very important- you should submit your complaint within two years of becoming aware of the facts on which your complaint is based, after having first contacted the EU institution concerned to help you.

5)   If you only speak or write in your native language, don’t worry. You can submit your complaint (by e-mail or post) in any of the 23 official languages of the EU.

Even though EU is not inexperienced organization any more, its institutions may still make some mistakes that can affect our fundamental rights. If so, the most important matter is not to be afraid of making a complaint and performing our right to petition. You can find further information here: http://www.ombudsman.europa.eu.

If you still hesitate, please remember current Ombudsman’s, E. O’Reilly motto : “My ambition is to support the EU institutions in becoming more effective, transparent and accountable by strategically increasing the visibility and impact of the work of the European Ombudsman”.

European Commission at work

Kamil Augustyniak

Every serious entity, e.g. international organization, state, council  university etc., was founded and based on law and order. Since in the case of educational institution such establishment is relatively easy to accomplish, the nature of state or international organization is more complicated. There are various factors which make an agreement difficult to conclude. The best example of entity struggling with difficulties in a name of a common profit is the European Union which had to challenge its legal system in order to  bring nations closer and introduced, almost impossible for many regions in the world, unified legal order for all Member States.

Headquarters of the European Commission Brussels©EUROpens BLOG

Headquarters of the European Commission, Brussels©EUROpens BLOG

Enforcing European law

The European Union gathers diverse communities into one coherent body. By establishing comprehensive system of legal protection it is able to ensure security of its citizens and allow them to fully enjoy their rights. Since mentioned diversity occurs, sometimes there are problems with enforcing EU law. In order to come across Member States’ infringements the European Commission is on duty to act as “guardian of the treaties”. It means that, together with the Court of Justice of the European Union, they are responsible for making sure EU law is properly applied in all Member States. If it finds a failure to fulfill obligations (therefore not meeting its legal provisions), the Commission takes steps to make the situation right. First of all, it launches a legal process called the “infringement procedure” which involves sending to the government an official letter with explanation why the Commission considers this country is infringing EU law. If this procedure fails (after exceeding given deadline) the Commission refers the issue to the Court of Justice, which has power to impose penalties.

Infringement package – main decisions

Let’s put theory aside and move to practice. The European Commission, in its monthly package of infringement decisions, has summarized February 2015 actions against Member States which failed to fulfill obligations under EU law. It gave several important decisions to ensure proper application of EU law for the benefit of citizens and economies in Europe.

European Commission refers Italy to the Court of Justice due to avoiding paying levies for overproduction of milk.[1] The Commission found infringement in Italian agriculture system and finally channeled the problem to the Court of Justice. In the period from 1995 to 2009 the situation in Italy remained unchanged – every year producers of milk exceeded given amount of milk and caused overproduction which forced the Italian state to paid the Commission supplementary due (EUR 2.305 billion). However, Italian authorities did not take any appropriate measures in order to exact fees from producers. According to the Commission, such situation threaten the market competitiveness and violates EU law, which clearly states that charges should be paid by producers who exceeded their individual milk quotas.

The Commission calls Germany to comply with the reference period when calculating the average weekly working time in German civil service. The European Commission has called Germany to comply the period referred to in Directive (2003/88/EC) on working time in the calculation of the average maximum weekly working time, in the case of civil servants. Under this Directive, employees are entitled to a reduction of average weekly working time to 48 hours in reference period up to four months. It means that employees can be required to work more than 48 hours in some weeks. However, German law provides such system for 12 month period. The Directive allows Member States to establish longer reference period in certain situations but even in such cases the period should not exceed 6 months. The only exception that allows to extend this period to 12 months is a collective consent. As long as German public service does not provide such, German law is in contrary to the directive on working time. The current request takes a form of a reasoned opinion under EU infringement procedure. Germany has two months to inform the Commission of the measures taken to adapt national legislation to EU law. Otherwise, the Commission can decide to refer Member State before the Court of Justice.

The Commission requests Greece, Portugal and Slovenia to comply with EU rules on Energy Efficiency Directive. Under the Directive (2012/27/EU) Member States are in duty to achieve energy savings in period from 1 January 2012 to 31 December 2020. The Directive had to be transposed into national law by 5 June 2014 and this is why a reasoned opinion has been sent to Greece and Portugal with request to notify the Commission of all their transposition measures for the Directive.

If the EU law will not be properly adapted, the Commission can ask for financial sanctions for those Member States before the Court of Justice. What is more, Slovenia which has already transposed the Directive into national order is asked to submit a National Energy Efficiency Action Plan and long-term strategy for renovation of buildings in order to diminish wasting energy. Since Slovenia did not do meet a given deadline, the Commission’s request takes the form of a reasoned opinion. If Slovenia will not follow legal obligations within two months, the Commission can decide to refer it to the Court of Justice.

The Commission withdraws case against Poland for failing to transpose EU provisions.[2] In January 2011, the Commission sent a letter of formal notice to Polish government in order to clarify the situation in Polish law concerning the Renewable Energy Directive (2009/28/EC). The Directive goal is to ensure 20% share in renewable energy in the EU by 2020 and had to be fully transposed by Member States by 5 December 2010. Later on, in March 2012, the same institution delivered a reasoned opinion due to lack of sufficient measures done by Poland but the situation did not changed. As a result, in March 2013, the Commission referred the case to the Court of Justice for complete absence of transposition and charged Poland to EUR 133.228,80  for every day of delay. Since Poland notified the full transposition of the Directive on 29 January 2015, the Commission withdrew the case from the court.

Additional materials:

europa.eu/rapid/attachment/MEMO-15-4489/en/annex_table%20of%20February%20infringement%20package%20by%20country.pdf

[1] Read more: http://europa.eu/rapid/press-release_IP-15-4490_en.htm
[2] Read more: http://europa.eu/rapid/press-release_IP-15-4499_en.htm