EU Council reaches common position on draft Data Protection Directive

The EU Council has agreed its negotiating position on the draft Data Protection Directive for the law enforcement area. This in an important step as the Trilogue parties working on the EU Draft DP Regulation had agreed that the two instruments need to be adopted as a package. It also signals that many of the key issue may have been resolved as some of the concepts are the same in the Regulation and the Directive.

This agreement of 9 October enables the Luxembourg Presidency to also start discussions with the European Parliament on this part of the data protection package. The Trilogue parties aim to finish negotiations on the two instruments by the end of this year.

According to the EU Council, EU Member States may provide nationally higher safeguards than the ones set out in the Directive. For example, it is suggested that Data Protection Officers would not be mandatory.

The new Directive would grant data subjects the right to receive compensation if they have suffered damage as a consequence of processing that has not respected the rules. Compensation would have to be paid by the controller or any other authority competent under national law, but the level of compensation would be determined by Member States. Penalties for non-compliance with the Directive would also be decided at national level, but they would have to be ‘effective, proportionate and dissuasive’.

At the same time, the European Data Protection Supervisor, Giovanni Buttarelli, issued his recommendations on the recitals of the general Data Protection Regulation, saying that although the recitals have no independent legal value, they can be used when interpreting the scope of the substantive provisions in the text.