Hustinx attacks German proposal for safeguards on data exchanges

The EU’s most senior data protection official has criticised the latest attempt by the German presidency to set safeguards for the exchange of information by law-enforcement organisations.

The German government has drawn up a text aimed at brokering agreement on a proposal by the European Commission for rules governing data protection in cases where police and judicial authorities are co-operating across borders in criminal matters.

Peter Hustinx, in an opinion released on 27 April, criticises the German text for applying only to data exchanged between member states’ police forces, customs officers and immigration officials and with EU bodies such as Europol and Eurojust.

He notes that national law-enforcement bodies would not be covered by the proposal, which would, he says, lead to the "possibility of having different levels of data protection in different member states", he says.

That, he observes would be out of line with the drive to create a common area of freedom, security and justice within the EU, and would lead to law-enforcement authorities being "unduly burdened by unmanageable distinctions" between domestic data and data that could be transferred across borders "which in most cases will be part of the same file".

Hustinx warns that the German text waters down the terms of the original European Commission proposal and falls below the level of protection included in a convention by the pan-European human rights body, the Council of Europe, signed by all EU states.

Unlike the Council of Europe’s Convention 108 on data protection, the new proposal would not set limits on the reasons for holding information or sending it on to another member state, says Hustinx. "Broad and open derogation does not fulfil the basic requirements of adequate data protection and even contradicts the basic principles of Convention 108," he says.

Hustinx also complains that the proposal sets no standards that have to be met if the information is to be sent on to third countries or private bodies, leaving the assessment up to the discretion of member states, which will also lead to differences in management of data from country to country.

Citizens can be denied access to their data held by law-enforcement bodies if such access is "detrimental to national interests", a notion Hustinx says is "too broad and unforeseeable". No mechanism exists to allow citizens to appeal against such a decision.

The German presidency is not hopeful of achieving agreement on this latest text before the end of June. The proposal to set down safeguards on information held by law-enforcement bodies has already been through several drafts because of opposition from some member states over extending it to their domestic bodies and restricting the use of data for the purposes of crime prevention.

But Hustinx warns such opposition cannot "justify a lowest common denominator approach that would hinder the fundamental rights of EU citizens as well as hamper the efficiency of law enforcement".

In his annual report, published yesterday (2 May), he repeated his assertion that the proposal should be in place before the introduction of changes to the way Europol manages data and of exchanges of data between member states’ police forces.

The EU’s most senior data protection official has criticised the latest attempt by the German presidency to set safeguards for the exchange of information by law-enforcement organisations.