By Jorg Walter
Despite previous assertions to the contrary, the European Parliament’s Civil Liberties Committee (“LIBE”) announced on Wednesday that it would not be holding its important vote on the Proposed Data Protection Regulation before the summer recess. A new vote has not yet been scheduled but is planned for September or October 2013.
As leading committee on the Data Protection Regulation, LIBE’s vote on the draft bill is particularly important and was expected to show the direction in which the Parliament is heading. However, the committee is struggling with the high volume of amendments proposed by its fellow Members of Parliament (totaling more than 3,000), on which it is required to vote. The committee’s vote was initially planned in early 2013 but has been postponed several times (see InsidePrivacy European Commission Proposal for Data Protection Regulation Delayed Again, May 06, 2013; European Parliament’s Lead Committee for the Proposed EU General Data Protection Regulation Postpones Vote, March 21, 2013).
Growing Concerns About Overall Schedule
With the LIBE vote lagging behind schedule, the entire and complex legislative process now risks being further delayed. Without the LIBE vote, no formal negotiations between the two legislative bodies, Parliament and Council, can start. In addition, the Parliament’s necessary plenary vote can only take place after the committee has held its final vote on the amendments.
While the Draft Regulation already contains various controversial issues that could entail difficult and lengthy negotiations, a tight deadline creates additional time pressure for the process. Officially, Council and Parliament still intend to reach an agreement before the European Parliament elections in May 2014, with both bodies mindful of the fact that discussions could become even more heated in the context of election campaigns.
Current Status of Discussions in the Council
The debates between the 27 Member States are not open to the public but regular reports on the progress have been published by the biannually rotating Presidency. The discussions in the Council have been every bit as controversial as in the Parliament. In fact, some Member States have even refuted the legal form of the proposed directly applicable Regulation and have opted instead for a Directive. By now, following more than one year of negotiations, the Council could finalize its first examination of the entire Draft Regulation but has not agreed upon a common text.
The current Irish Presidency published on 31 May 2013 a compromise text with amendments to the first four chapters (i.e., general provisions, principles, rights of the data subject, controller and processor), reflecting the Presidency’s view of the state of play of negotiations at this stage. Even though this compromise text is not the formal position of the Council, it received the preliminary backing of most Member States and future discussions will certainly revolve around the compromise text.
In any event, the Council is still in the full process of discussing several key issues. Some potentially controversial topics like international data transfer and the Regulation’s sanctions regime have not yet been subject to in-depth negotiations between the Member States.
The delay in the Parliament also provides the Council with more time to shape its position. To finalize this process and have a negotiating mandate ready will thus be one of the main challenges of the new Presidency, as on July 1, Lithuania will take over from Ireland for the second half of 2013.
Negotiations after the Elections in May 2014?
Finally, what would happen to the Draft Regulation if no agreement can be found before European voters are called to ballot? Unlike in many Member States (e.g., Germany) this would not necessarily mean the end of this legislative process, as the Draft Bill would not automatically expire with the end of this parliamentary term. At EU level, it would not be unprecedented that the same Draft Bill is discussed during several parliamentary terms. The new Parliament could continue negotiating with the Council and bring the process to an end, although this would obviously depend to a large extent on the new majority in the Parliament and its political will to continue on the path of its predecessors.