The EU’s ambitious plans for a radicalisation of data protection laws have suffered a serious set-back. EU justice commissioner Viviane Reding finally conceded in a speech at a meeting of EU justice and home affairs ministers in Athens last week that the draft General Data Protection Regulation will not be agreed during the current term of the EU Parliament.

The most recent delay has been caused by the EU Council of Ministers failing to reach agreement before starting negotiations with the EU Parliament and the Commission, with several Member States demanding significant changes to the proposals.

New timetables have been proposed and optimistic statements made that there will still be a new data law by the end of this year.  However, the reality is that any prediction about the substance or process to agree the draft Regulation post this May’s parliamentary election season is guesswork at best.   Fundamental differences remain among Member States as evidenced by the failure of the Council to reach consensus to start formal negotiations.  In addition, new MEPs will have their own political agendas and priorities and may be wary of becoming embroiled in the long running saga of the draft Regulation. 

The proposals have proved to be some of the most controversial to come out of the Brussels legislative machine in years, with over 4,500 amendments proposed to the original text.  The negotiations to date have consumed vast resources and exhausted goodwill.  Even in Member States which have historically been seen as backers of the proposals, support is waning.  Poland’s Inspector General for the Protection of Personal Data, Wojciech Wiewiorowski said last week that support in Poland is dropping because the Regulation, announced two years ago by the Commission is taking too long.

Germany, regarded by many as setting the high water mark for data protection, although supportive of the proposals, wants to see a broad carve-out for the public sector to ensure that German authorities can continue to collect and process personal data without having to comply with the uniform standards.  Germany’s stance has been criticised by German MEP Jan Albrecht and rapporteur for the draft Regulation who said “obviously the German government is against European-wide common rules.  This behaviour is irresponsible against the EU citizens.” 

Irresponsible or not, Germany’s position demonstrates the challenge that the EU Council and a newly constituted Parliament will face to reach agreement on the text of the Regulation.  If data protection friendly Member States such as Germany can’t be persuaded to support the proposals, then what prospects are there to build consensus among all 28 Member States?  The UK, Denmark, Hungary and Slovenia are calling for a watering down of the proposals and re-rendering them as a Directive, which would afford more discretion to individual Member States to interpret the new requirements.

Albrecht must be concerned that his magnum opus may never become law.

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