Tải bản đầy đủ - 0 (trang)
3 The EU Legislator’s Institutional Role, Institutional Balance and the Contributions of the European Parliament, the Council and the Commission

3 The EU Legislator’s Institutional Role, Institutional Balance and the Contributions of the European Parliament, the Council and the Commission

Tải bản đầy đủ - 0trang

6.3  The EU Legislator’s Institutional Role, Institutional Balance…



271



the need for the data protection reform and gave an impetus to the legislative process.26 This role of the European Council will not be discussed further.



6.3.1  T

 here Is One EU Legislator, But Composed of Three

Institutions

Under the ordinary legislative procedure, the legislative power lies with the

European Parliament and the Council. However, they cannot act of their own

motion, without an initiative of the Commission. The monopoly of legislative initiative is established in Article 17(2) TEU. Both the European Parliament and the

Council may request the Commission to submit proposals. If the Commission does

not give effect to such a request, it must motivate its decision.27

Despite the different responsibilities of the three institutions, the emphasis in

practice is on compromise and dialogue,28 as illustrated by the important role of the

trilogues – not provided for in the Treaties – in the decision-making process.29 This

justifies speaking about one legislator, whilst at the same time recognising that, in

the words of Craig: “The EU institutions have always been ‘singular’.”30 The input

of the three institutions, respecting the institutional balance, gives democratic legitimacy to the EU legislator’s mandate, with the nuances relating to the Union’s democratic legitimacy explained in Chap. 4.

However, the institutions each play their own role within the EU system, based

on an institutional balance. The positions the institutions take on data protection and

their input in the negotiations on the data protection reform also reflect institutional

concerns. An example is the legislative resolution of the European Parliament of 11

February 2010.31 In this resolution, the European Parliament withholds its consent

to the conclusion of an agreement between the European Union and the United

States on the Terrorist Finance Tracking Program. This legislative resolution was

based on considerations of privacy and data protection, but was also a demonstra26



 E.g., the Conclusions of the European Council of 24–25 October 2013, available on: www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/ec/139197.pdf

27

 This is laid down in Article 225 TFEU (European Parliament) and Article 241 TFEU (Council),

which also includes the request for a study.

28

 Paul Craig and Grainne de Búrca, EU Law, Text, Cases and Material (Fifth Edition), Oxford

University Press, 2011, at 127–129.

29

 Raya Kardasheva, Trilogues in the EU legislature, King’s College London, Department of

European and International Studies, Research Paper, 30 April 2012.

30

 Paul Craig in: Paul Craig and Grainne de Búrca (eds), The evolution of EU Law (Second

Edition), Oxford University Press, 2011, at 41.

31

 European Parliament legislative resolution of 11 February 2010 on the proposal for a Council

decision on the conclusion of the Agreement between the European Union and the United States

of America on the processing and transfer of Financial Messaging Data from the European Union

to the United States for purposes of the Terrorist Finance Tracking Program (05305/1/2010 REV

1 – C7-0004/2010 – 2009/0190(NLE)).



272



6  Understanding the Scope and Limits of the EU Legislator’s Contribution…



tion of Parliament’s newly acquired competences in the Lisbon Treaty that had just

entered into force and gave the European Parliament binding powers in relation to

this type of agreements.32 A second example concerns the institutions’ positions in

relation to delegated and implementing acts, which were included in the Commission

Proposal for a General Data Protection Regulation. Both the European Parliament

and the Council were very critical of the high number of provisions empowering the

Commission to adopt delegated and implementing acts.33 The difference in position

between the European Parliament and the Council, on the one hand, and the

Commission, on the other hand, is presumably also based on institutional

considerations.



6.3.2  T

 he European Parliament as a Supporter of Strong

Privacy and Data Protection

In the successive Treaty changes, the powers of the European Parliament have been

strengthened in order to alleviate the Union’s democratic deficit and to better reflect

the will of the people in the decision-making process. At the same time, national

parliaments are more closely involved.34

In the debates on the rights to privacy and data protection, the European

Parliament has sought to play a role supporting the recognition and strengthening of

these rights, although it was reported that more involvement of the European

Parliament did not necessarily lead to a higher level of protection.35

The approach of the European Parliament as a proponent of stronger privacy and

data protection is illustrated by its long term involvement in the debates on public

authorities’ access to personal data processed by the private sector.36 As was indi32



 European Parliament, Directorate-General for Internal Policies, Policy Department C, Citizens’

Rights and Constitutional Affairs, Towards a New EU Legal Framework for Data Protection and

Privacy, Challenges, Principles and the Role of the European Parliament, September 2011, at

74–79 and 88–91. See also: Sergio Carrera, Nicholas Hernanz and Joanna Parkin, The

‘Lisbonisation’ of the European Parliament, Assessing progress, shortcomings and challenges for

democratic accountability in the area of freedom, security and justice, CEPS Paper, No. 58/

September 2013.

33

 See on this in Dutch: H. Hijmans, De nieuwe Europese privacywetgeving: stand van zaken bijna

twee jaar na Commissievoorstel, Nederlands tijdschrift voor Europees recht, 2013/10, at 349.

34

 Paul Craig and Grainne de Búrca, EU Law, Text, Cases and Material (Fifth Edition), Oxford

University Press, 2011, at 57–58. See also Chap. 4, Sect. 4.10.

35

 European Parliament, Directorate-General for Internal Policies, Policy Department C, Citizens’

Rights and Constitutional Affairs, Towards a New EU Legal Framework for Data Protection and

Privacy, Challenges, Principles and the Role of the European Parliament, September 2011, at 57,

88–90.

36

 See: S. in’t Veld, A View from the European Parliament on EU-U.S. Relations, in Data protection

anno 2014: how to restore trust? Contributions in honour of Peter Hustinx, European Data

Protection Supervisor (2004–2014), Hielke Hijmans and Herke Kranenborg (eds), Intersentia

2014.



6.3  The EU Legislator’s Institutional Role, Institutional Balance…



273



cated before, in 2010 the European Parliament used its newly acquired powers to

reject the agreement with the United States on the Terrorist Finance Tracking

Program. The agreement was finally adopted, taking into account the objections of

the European Parliament that had led to the initial rejection.37 After the Snowden

revelations in 2013, the European Parliament called for the suspension of the

agreement.38

A second occasion where the European Parliament was systematically involved

was the dossier on passenger name records (PNR) that related to public authorities’

access to reservations of passengers, mostly with airlines. In this dossier, the

European Parliament played an active role in opposing, at various instances, to

agreements with the United States and other third countries,39 and was also very

critical of using PNR for law enforcement within the European Union. In April 2013

the Civil Liberties committee of the European Parliament rejected the Commission

Proposal for a directive on the use of passenger name record data (EU PNR).40

In the debates on the reform of the European data protection framework, the

European Parliament takes a leading role, emphasising both the urgency for reform

and the need for robust data protection.41 An illustration of the latter is the way the

European Parliament deals with the proposal for a directive on data protection in the

area of law enforcement.42 First, it insists on the need for considering this proposal

as part of a package, together with the General Data Protection Regulation, so as to

avoid that the two eventually will be separated, which may lead to long delays for

the directive on data protection in the area of law enforcement.43 Second, the

European Parliament proposed amendments with specific obligations for law



37



 The changes did not address all objections; see: European Parliament, Directorate-General for

Internal Policies, Policy Department C, Citizens’ Rights and Constitutional Affairs, Towards a

New EU Legal Framework for Data Protection and Privacy, Challenges, Principles and the Role of

the European Parliament, September 2011, at 74–79 and 88–91.

38

 European Parliament resolution of 23 October 2013 on the suspension of the TFTP agreement as

a result of US National Security Agency surveillance.

39

 European Parliament, Directorate-General for Internal Policies, Policy Department C, Citizens’

Rights and Constitutional Affairs, Towards a New EU Legal Framework for Data Protection and

Privacy, Challenges, Principles and the Role of the European Parliament, September 2011, at

65–74.

40

 Further read: Sergio Carrera, Nicholas Hernanz and Joanna Parkin, The ‘Lisbonisation’ of the

European Parliament, Assessing progress, shortcomings and challenges for democratic accountability in the area of freedom, security and justice, CEPS Paper, No. 58/September 2013.

41

 See in Dutch: H. Hijmans, De nieuwe Europese privacywetgeving: stand van zaken bijna twee

jaar na Commissievoorstel, Nederlands tijdschrift voor Europees recht, 2013/10. See also: Jan

Philipp Albrecht, No EU Data Protection Standard Below the Level of 1995, EDPL 2015, 1/3.

42

 The additional protection proposed by the European Parliament is made visible in the Comparative

table annexed to the Opinion of the European Data Protection Supervisor of 28 October 2015, A

further step towards comprehensive EU data protection, EDPS recommendations on the Directive

for data protection in the police and justice sectors.

43

 The proposed directive suffered from resistance within Council, relating to the fact that Member

States are reluctant in accepting wide involvement of the EU in the police and justice sectors.



274



6  Understanding the Scope and Limits of the EU Legislator’s Contribution…



enforcement authorities dealing with personal data, in addition to the general data

protection principles.44



6.3.3  T

 he Council of the European Union Representing

National Concerns

In general, the role of the Council is the representation of national interests.

However, it is also an EU institution that takes part in the decision-making process.

As Craig and de Búrca explain, it represents a mix of intergovernmental and supranational interests.45

The reform of the European data protection framework has proved to be a long

and difficult process in the Council, even though the heads of government in the

European Council – the highest political level in the EU – have underlined the

reform’s importance.46 National concerns complicated progress being made in the

adoption of the General Data Protection Regulation. These concerns related, for

instance, to the impact of the regulation – aimed at replacing national laws on data

protection – on existing provisions in various national laws containing specific data

protection safeguards.47

Another constant factor in the Council is the impact of EU data protection law on

security, a core competence of the Member States. This is a reason why, for instance,

the proposal for a directive on data protection in the area of law enforcement48 was

not given the same priority as the proposed General Data Protection Regulation.49

44



 European Parliament legislative resolution of 12 March 2014 on the proposal for a directive of

the European Parliament and of the Council on the protection of individuals with regard to the

processing of personal data by competent authorities for the purposes of prevention, investigation,

detection or prosecution of criminal offences or the execution of criminal penalties, and the free

movement of such data (COM(2012)0010 – C7-0024/2012 – 2012/0010(COD)), amendments

relating to Articles 4–19.

45

 Paul Craig and Grainne de Búrca, EU Law, Text, Cases and Material (Fifth Edition), Oxford

University Press, 2011, at 46.

46

 Conclusions of the European Council 24–25 October 2013, at 8: “It is important to foster the

trust of citizens and businesses in the digital economy. The timely adoption of a strong EU General

Data Protection framework […] is essential for the completion of the Digital Single Market by

2015.”

47

 Waltraut Kotschy, The proposal for a new General Data Protection Regulation—problems

solved?, International Data Privacy Law, 2014, Vol. 4, No. 4, at 275–276; J.P. Albrecht, in: Data

protection anno 2014: how to restore trust? Contributions in honour of Peter Hustinx, European

Data Protection Supervisor (2004–2014), Hielke Hijmans and Herke Kranenborg (eds), Intersentia

2014, at 125–126.

48

 Proposal for a Directive of the European Parliament and of the Council on the protection of

individuals with regard to the processing of personal data by competent authorities for the purposes of prevention, investigation, detection or prosecution of criminal offences or the execution

of criminal penalties, and the free movement of such data, COM (2012), 10 final.

49

 As illustrated by the fact the Council adopted a general approach (Note from Presidency to

Council, 11 June 2015, 9565/15) in June 2015, but for the Directive only in October 2015.



6.3  The EU Legislator’s Institutional Role, Institutional Balance…



275



6.3.4  The European Commission, Committed to Integration

Whereas the Treaty on European Union describes the tasks of the European

Parliament and the Council in terms of powers, it gives an orientation for the

Commission. Pursuant to Article 17 TEU the Commission shall promote the general

interest of the Union. And indeed, in practice the Commission is seen as the political

force most committed to integration.50

In its formal role of proposing legislation, the Commission enables the EU legislator to adopt rules and during the legislative process it acts as an – informal – broker between the European Parliament and the Council.

The delegated and implementing acts provided for in Articles 290 and 291 TFEU

are a means for the Commission to remain influential after a legislative act has been

adopted, by amending or supplementing non-essential elements of the act or by

adopting uniform conditions for its implementation. These procedures replace the

old structures for delegation, known as comitology-procedures,51 and are a way for

the Commission to act as legislator, subject to scrutiny by the Council and the

European Parliament.52 The procedures have been criticised because they lack democratic content.53

The justification of the proposal for a General Data Protection Regulation is

illustrative for the Commission’s role. The comprehensiveness of the European data

protection framework is a major impetus for the proposal, as is revealed by the title

of the communication paving its way: “A comprehensive approach on personal data

protection in the European Union”.54 One of the main concerns leading to the proposal was the existence of differences in the implementation of the existing EU data

protection framework in the Member States.55 In other words, the reform is inspired

by the preference for EU integration.

This does not mean that a preference for integration necessarily means more

integration in all areas. The Commission is well aware that the EU legislator should

not be involved in every issue in the European Union. As the Juncker Commission



50



 Paul Craig and Grainne de Búrca, EU Law, Text, Cases and Material (Fifth Edition), Oxford

University Press, 2011, at 40.

51

 Paul Craig in: Paul Craig and Grainne de Búrca (eds), The evolution of EU Law (Second

Edition), Oxford University Press, 2011, at 46–50, 77–79.

52

 Paul Craig and Grainne de Búrca, EU Law, Text, Cases and Material (Fifth Edition), Oxford

University Press, 2011, at 34 (in relation to delegated acts).

53

 Paul Craig and Grainne de Búrca, EU Law, Text, Cases and Material (Fifth Edition), Oxford

University Press, 2011, at 150.

54

 Communication from the Commission to the European Parliament, the Council, the European

Economic and Social Committee and the Committee of the Regions, A comprehensive approach

on personal data protection in the European Union, COM (2010), 609 final.

55

 As explained by Waltraut Kotschy, The proposal for a new General Data Protection Regulation—

problems solved?, International Data Privacy Law, 2014, Vol. 4, No. 4.



276



6  Understanding the Scope and Limits of the EU Legislator’s Contribution…



underlines in its endeavours for better regulation,56 the EU legislator should focus

on big issues that cannot be solved by Member States alone. This focus is a continuation of Commission policy since the beginning of the twenty-first century.57



6.4  I nvolving Other Stakeholders: Member States, Private

Sector and Civil Society

This book emphasises the involvement of the Member States and of the private sector – and to a lesser extent of civil society – in the exercise of the EU mandate under

Article 16 TFEU. This involvement is not only crucial in the application of EU law,

but also in the legislative procedure. An important part of this procedure is the wide

consultation of stakeholders during the process. The General Data Protection

Regulation illustrates the role wide consultations play. The Commission Proposal

was presented as the result of consultations that lasted for more than 2 years and

included a wide range of interested parties, and of an impact assessment.58 These

interested parties included experts and expert bodies, as well as interested individuals. After the Commission adopted the proposal, these various interest groups continued to be involved. Albrecht, the rapporteur in the European Parliament,

underlines for instance that many of the more than 4,000 proposals for amendments

in the European Parliament were instigated by the private sector.59

The Commission’s communication on better regulation of 2015 emphasises the

importance of consulting stakeholders in a wider manner. The Juncker Commission

promises to consult more and listen better.60



56



 Communication from the Commission to the European Parliament, the Council, the European

Economic and Social Committee and the Committee of the Regions, Better regulation for better

results – An EU agenda, COM(2015) 215 final, p. 3.

57

 E.g., Communication from the Commission of 25 July 2001 “European governance – A white

paper”, COM(2001) 428 final, OJ C 287.

58

 Commission Proposal for a General Data Protection Regulation, COM (2012), 11 final,

Explanatory Memorandum, at 2.

59

 J.P. Albrecht, in: Data protection anno 2014: how to restore trust? Contributions in honour of

Peter Hustinx, European Data Protection Supervisor (2004–2014), Hielke Hijmans and Herke

Kranenborg (eds), Intersentia 2014, at 126.

60

 Communication from the Commission to the European Parliament, the Council, the European

Economic and Social Committee and the Committee of the Regions, Better regulation for better

results – An EU agenda, COM(2015) 215 final, at 2.1.



6.4  Involving Other Stakeholders: Member States, Private Sector and Civil Society



277



6.4.1  I nvolvement of Actors Within the Member States Takes

Various Forms

Although it is the Council’s role to reflect national interests in the EU legislative

procedure, in addition, actors within the Member States representing national interests are involved through various other mechanisms.

At various stages of EU integration the Member States have claimed to retain

competences in cases where the outcome of the legislative process would not reflect

their preferences.61 An example in current EU law is Article 114(4) TFEU that

allows Member States, under strict conditions, to maintain national provisions on

grounds of major needs after laws have been harmonised. More and more it is considered that the national government’s involvement in the Council is not enough

and that other stakeholders at national level should also be involved.

Presently, the Treaties provide for national parliaments to be involved in the legislative procedure of the European Union. National parliaments have a right to show

the ‘yellow card’62 when they consider that the principle of subsidiarity has not been

respected. This involvement should ensure that national preferences are taken into

account and fits within the general assignment in Article 12 TEU for national parliaments to contribute actively to the good functioning of the Union. Furthermore,

consultation of regional and local authorities represented in the Committee of the

Regions63 aims at enhancing the legitimacy of EU legislation in the various regions

within the Union.

Member States’ interests are also put forward in various informal configurations,

by interest groups with a national background or through the involvement of national

experts and civil servants in policy-making.64 The consultation of independent data

protection authorities, as currently required under Article 28(2) of Directive 95/46,

constitutes a separate type of consultation, aiming at obtaining specialised input

from national experts. This expert advice should enhance the quality of EU legislation and hence increase its legitimacy and effectiveness. Chapter 7 addresses expert

advice in relation to the legitimacy of these authorities themselves.



61



 Paul Craig in: Paul Craig and Grainne de Búrca (eds), The evolution of EU Law (Second

Edition), Oxford University Press, 2011, at 46.

62

 Protocol (No 2) on the application of the principles of subsidiarity and proportionality, annexed

to the TEU and TFEU. Further read: Davor Jančić (2015), “The game of cards: National parliaments in the EU and the future of the early warning mechanism and the political dialogue”, CMLR

52 (2015), 939–975. See also Chap. 4, Sect. 4.4.

63

 Article 300(3) TEU.

64

 Paul Craig and Grainne de Búrca, EU Law, Text, Cases and Material (Fifth Edition), Oxford

University Press, 2011, at 147, mentioning administrative interaction and the interlocking of

bureaucracies at national and EU level.



Tài liệu bạn tìm kiếm đã sẵn sàng tải về

3 The EU Legislator’s Institutional Role, Institutional Balance and the Contributions of the European Parliament, the Council and the Commission

Tải bản đầy đủ ngay(0 tr)

×