Well, I think its only fair for us poor Data Protection kids in
Europe to have been asking this on repeated occasions over the last
three and a half years. It's certainly a frequent topic of
conversation with clients and practitioners alike. And the answer
is? Well, nearly...
It's been a long road, but something of a milestone was
reached on Monday as the Council of Ministers finally passed its
own "general approach" on proposed changes to the
Commission's draft Data Protection Regulation. That's
nearly three and a half years after the European Commission first
published its draft of the Regulation in January 2012.
This "general approach" – which can be found here - is effectively the Council's
starting position for negotiations with the other two European
institutions (the Commission and the Parliament) to reach a final
form of wording on the Regulation. This "trilogue" stage
is due to start on the 24th June.
So, where do we stand on timing?
You might think that means (to steal another travel analogy)
full steam ahead towards a quick resolution.
Well, certainly the talk has now swung to focus on
"when", rather than "if" the Regulation will be
passed. And, officially, the stated aim is to reach a final
agreement by the end of 2015.
However, this appears optimistic. The length of time that the
Council has taken to reach its agreed position is indicative of
both the variety and strength of views on the key issues at stake
with the reform of data protection across Europe. This was evident
in the fact that in the last draft of the Council's text that
was seen before the official announcement there remained over six
hundred Member State reservations – or areas where particular
Member States expressed a reservation with the approach being
adopted. Expect to see these as areas of stalled negotiations
Well, its unlikely to be all plain sailing from here and there
may still be some bumps in the road.
On the face of it, the Council has certainly stuck closer to the
Commission proposal than the European Parliament in key areas. For
example, on fines, the Council have agreed on the same limit as the
Commission (a maximum of 2% of worldwide annual turnover). The
Council also has agreed that a single regulation should apply
rather than another directive subject to local implementation
(something that had been a real sticking point for some Member
States). It is also agreed with the application of the law to
non-European entities and the "new" right to be
These are important fundamental principles that need to be
aligned. So definitely some positive signs for reaching
However, there are still some that will require quite a bit of
work. In particular, what was apparent from the Council's text
is that many Articles provide for Member State carve outs. With
these Articles operating like a Directive, the idea of having a
fully harmonised Regulation is certainly under threat and this will
likely be an area discussed in length during negotiations.
So, the long winding road continues. But, even once you allow
for the two year transition period, we're still likely to reach
the go-live date for the new rules sometime in 2018. Not much time
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