[ARTICLE 16B ]

HUMAN RIGHTS:

EU INTERFERES WITH MOVEMENT OF UK PERSONAL DATA <= /span>

RELATING TO CRIME, JUSTICE AND TRAVEL

[ARTICLE 16B]

AMENDMENT TO: Treaty of Lisbon am= ending the Treaty on European Union and the Treaty establishing the European Community (Lisbon= , 13 December 2007)

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Policy Area:

Treaty= on the Functioning of the European Union, Part I, Principles, Title II Provisi= ons having general application, &nbs= p; Article 16B

Amendment:

Clause 2, page 1, line 12, after ‘excluding’, insert—

‘(i) Article 2, paragraph 29, replacement Article 16B TEC (TFEU) relating to the protection= of personal data; and

(ii)’.

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<= st1:City w:st=3D"on">Lisb= on Treaty: =

“= ;29) An Article 16 B shall be inserted, replacing Article 286:=

"= ARTICLE 16 B

1. Eve= ryone has the right to the protection of personal data concerning them.

2. The European Parliament and the Council, acting in accordance with the ordinary=

legislative procedure, shall lay down the rules relating to the protection of individua= ls with regard to the processing of personal data by Union institutions, bodie= s, offices and agencies, and by the Member States when carrying out activities which fall within the scope of Union law, and the rules relating to the free movement of such data. Compliance with these rules shall be subject to the control of independent authorities.

The ru= les adopted on the basis of this Article shall be without prejudice to the spec= ific rules laid down in Article 25a of the Treaty on European Union.".̶= 1;

Consolidated Treaty Article(s):

“Article 286

1. From 1 January 1999, Community acts on the protection of individ= uals with regard to the processing of personal data and the free movement of such data shall apply to the institutions and bodies set up by, or on the basis = of, this Treaty.

2. Before the date referred to in paragr= aph 1, the Council, acting in accordance with the procedure referred to in Article 251, shall establish an independent supervisory body responsible for monito= ring the application of such Community acts to Community institutions and bodies= and shall adopt any other relevant provisions as appropriate.”=

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Expl= anation:

The Lisbon Treaty, under Article 16 B (1), recognizes the right of everyone to the protection = of personal data. The new Article 16B (2) provide= s for the adoption of rules “relating to the protectio= n of individuals with regard to the processing of personal data by Union institutions, bodies, offices and agencies, and by the Member States when carrying out activities which fall within the scope of Union law, and the r= ules relating to the free movement of such data.” Such rules will be decid= ed by Qualified Majority Voting in the Council and the European Parliament acting under the Ordinary Legislative Procedure (co-decision procedure). It adds that “Compliance wil= l be subject to the control of independent authorities.” However, it has n= ot recognised the European Data Protection Supervisor (EDPS) that on the basis= of Article 286 (2) was established in 2004 to supervise the processing of per= sonal data by Union institutions under EC law.

This is not unprecedented. Under the present= Article 286 it is merely provided that= “Community acts on the protection of individuals with regard to the processing of personal data and the free movement of such data shall apply to the institutions and bodies set up by,= or on the basis of, this Treaty.” Moreover, = it calls for the Council to establish an “independent supervisory body responsible for monitoring the application of such Community acts to Community institutions and bodies and shall adopt any other relevant provis= ions as appropriate.” This Article is substantially changed by the Lisbon Treaty and it was renumbered Article 16B.

Again, this is not unprecedented. There is alre= ady a directive harmonising national data protection law within the scope of the first pillar, Directive 95/46/EC of the European Parliament and of the Council on t= he protection of individuals with regard to the processing of personal data an= d on the free movement of such data and there is a Commission’s proposal for a Framework Decision ^{on
the protection of personal data processed in the framework of police and
judicial co-operation in criminal matters which is under discussion.}

The protection and movement of court, police= and judicial data in Bri= tain will now be subject to EU interference. There is a Declaration on Article 16 B of the Treaty on= the Functioning of the European Union and a Declaration on the protection of personal data in the fields of judicial cooperation in criminal matters and police cooperation which states “The Conference acknowledges that specific rules on the protection of personal data and the free movement of = such data in the fields of judicial cooperation in criminal matters and police cooperation based on Article 16 B of the Treaty on the Functioning of the European Union may prove necessary because of the specific nature of these fields.” The Lisbon Treaty now incorporates police and judicial cooperation in criminal matters in the Treaty on the Functioning of the European Union (TFEU) so, the TFEU will cover data protection by the Member States within the scope of first and existing= third pillar matters. Therefore, the rules of Directive 95/46/EC and Regulation Regula= tion (EC) = N° 45/2001 on protection of individuals with regard to the processing of perso= nal data by the Community institutions and on the free movement of such data will apply to the processing of personal data in the area of police and judicial cooperation = in criminal matters. The Directive 95/46/EC states that these rules are not applicable to the processing of personal data in the course of an activity which falls outside the scope of Community law (such as those provided for = by Titles V and VI of the Treaty on European Union), however Title V will no longer be an activity which falls outside the scope of Community law. The p= rotection of personal data is a very sensitive area and it should be left to the responsibility of Member States. The European Parliament and the Council are free to adopt, on the proposal of the Commission, further legislation in th= is area.

The protection and movement of travel data w= ill be subject to EU interference. The Commission also adopted a proposal for a Council Framework Decision on the use of Passenger Name Record (PNR) for law enforcement purposes which again raises concerns over privacy and data protection issues in the field of travel data.

Foreign policy data will be excluded from intervention. This Article states that “The rules adopted on the basi= s of this Article shall be without prejudice to the specific rules laid down in = Article 25a of the Treaty on European Union." Therefore, data protection within the scope of the EU’s f= oreign policy is excluded from the scope of this Article.