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A new body in the European Institutional Landscape : the EDPS

A new body in the European Institutional Landscape : the EDPS. Presentation at the Court of Justice Hielke HIJMANS 12 March 2007. Introduction. Happy to be back Presentation in 2 parts EDPS as an EC-institution (or body) The EDPS and the Court. What are the relations ?

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A new body in the European Institutional Landscape : the EDPS

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  1. A new body in the European Institutional Landscape : the EDPS Presentation at the Court of Justice Hielke HIJMANS 12 March 2007

  2. Introduction • Happy to be back • Presentation in 2 parts • EDPS as an EC-institution (or body) • The EDPS and the Court. What are the relations ? • For more info: my article in CMLR 43, 1313-1342, 2006. (Can also be found on www.edps.europa.eu).

  3. PART 1: Data Protection: a fundamental right • Closely linked to privacy but not the same (Art 7 and 8 of Charter) • Distinction recognised in C-465/00, Österreichischer Rundfunk. Privacy is more than private life (also work-related issues), but qualified interest. Data protection covers all processing of personal data. • In practice Article 8 ECHR (and Strasbourg jurisprudence) plays important role • Article 286 EC as recognition.

  4. Part I: Independent supervision • Essential element of data protection, in most western countries (not US). • Why? • Element of secrecy of data processing: the right is not respected by itself. Proactive enquiries might be needed. • Technical skills required. • Judicial control not enough.

  5. Part I: The EDPS • A new concept: supervising the institutions • Based on Article 286 EC and Regulation 45/2001 • Needed to harmonise level of protection within institutions with level in Member States (public and private sector). • Wide responsibility ensuring respect of fundamental rights by EU-institutions. • Not only supervision but also “consultation” and “cooperation”.

  6. Part I: The EDPS is not an institution • He is not listed in Article 7 EC • He has to respect the institutional balance • But: he has privileged position (like f.i. ECB or Ombudsman) • For specific purposes (budget, Staff) he is equal to institution • Court did not find formal status important when granting leave to intervene.

  7. Part I: The EDPS is not an agency • Because of his legal basis in the Treaty itself. • His task does not originate in institutions, but is designed to supervise the institutions. • Agencies can supervise the market, but not an institution.

  8. Part I: The EDPS is not a regulator • A phenomenon coming from the US; independent authority with powers to give binding decisions and regulatory powers • In EU mainly known in connection with liberalisation in specific sectors of market • EDPS has many similarities, but also has completely different tasks

  9. Part I: The EDPS is not an Ombudsman • Not an ombudsman for data protection. • Complaints with EDPS are remedies, not political rights to participate. • EDPS is not alternative to legal protection, but part of it. • But, part of “good governance”. Close relation with European Ombudsman, laid down in MoU.

  10. Part I: Not a judicial authority • But he fulfils criteria Court under Article 234 EC (Dorsch Consult). • He is established by law, permanent, procedure is ‘inter partes’, he applies rule of law and he is independent. • However: he is not meant to be a judge and has many tasks nothing to do with judicial tasks.

  11. Part I: Sui generis He does not fit in category, but has essential characteristics: • Visibility, giving data protection a face • Independence, offering additional legal protection • Expertise, improving the quality of EU-administration • Powers, building additional checks and balances in the system

  12. PART II: EDPS and Court • The EDPS supervising the Court of Justice • The EDPS as intervener • The EDPS as applicant • The EDPS as defendant

  13. Part II: Supervision and the Court • The EDPS supervises all institutions with exception of the court acting in its judicial capacity. • Cascade of supervision: Institutions themselves, internal DPO, EDPS, Court of Justice. • DPO: internal monitoring in independent manner. Guarantees for independence in Art 24 of Reg 45/2001.

  14. Part II: The EDPS as intervener • Art. 47 of Reg. 45/2001 allows EDPS to intervene. • Orders of Court 17-3-2005 (PNR-cases C-317/04, C-318/04). • “within limits deriving from the tasks entrusted to him”. • Experiences until now. Three opportunities (6 affaires juridiques).

  15. Part II: The EDPS as intervener 2 • Secondary legislation can be legal basis, where primary legislation (Treaty, Statute) is silent. • Right to intervene not only relating to supervision of processing of data (as argued by Com) • Interest of intervention can extend to cases on legal basis (C-301/06)

  16. Part II: The EDPS as applicant • No experience yet. • On one hand: Article 230 EC, limits the number of applicants (this does not include EDPS) • On other hand: Article 47 of Reg 45/2001 allowing EDPS to refer matters to the Court • Logical consequence if EDPS is part of system of legal protection • Will Court follow same line as in PNR?

  17. Part II: The EDPS is defendant • Again Article 230 does not mention EDPS. • Position comparable to agencies like OHIM, whose decisions can be contested before the Court. • What kind of cases? • Appeals by complainants • Appeals by institutions??

  18. FINAL REMARKS • Interesting part was to establish a real role within institutional landscape • We did lot, but some roles are still open • Still waiting for cases involving EDPS as a party. • Those cases could arise before all 3 courts. EDPS is mentioned in Staff Regulations. • THANK YOU!!!

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