Avis concernant le rapport final du Groupe de contact à haut niveau UE/Etats-Unis sur le partage d'informations et la protection de la vie privée et des données à caractère personnel, JO C 128, 06.06.2009, p. 1
The opinion relates to the Final Report by the EU-US High Level Contact Group on information sharing and privacy and personal data protection, which was presented by the EU Presidency in June 2008. The Report defines common principles on privacy and data protection as a first step towards the exchange of information between the EU and the US to fight terrorism and serious transnational crime. It also identifies options for a possible instrument that would apply the agreed common principles to data transfers.
The EDPS welcomes the progress achieved by the EU and US authorities to ensure an effective regime for privacy and personal data protection in the exchange of law enforcement information. He however emphasises the need for a careful analysis of the considered ways forward and recommends the development of a road map towards a possible agreement. Such a road map would involve all stakeholders at the different stages of the procedure and contain guidance for the continuation of the work, a timeline, as well as a further elaboration of the data protection principles on the basis of a common understanding on essential issues, such as the scope and nature of an agreement.
The EDPS calls for clarification and concrete provisions regarding the main following aspects:
- nature and scope of an instrument on information sharing: for the sake of legal certainty, the EDPS shares the report's preferred option for the adoption of a legally binding instrument. This general instrument would need to be combined with specific agreements on a case by case basis to reflect the many specificities of data processing in the field of security and justice. The scope of application should also be clearly circumscribed and provide for a clear and common definition of law enforcement purposes at stake;
- redress mechanisms: as one of the most prominent outstanding issues of the report, the availability of adequate means for redress needs to be properly addressed. Strong redress mechanisms, including administrative and judicial remedies, should be available to all individuals, irrespective of their nationality;
- measures guaranteeing the effective exercise of individuals' rights: further work is needed not only with regard to redress and oversight mechanisms, but also concerning the transparency of data processing and the conditions of access and rectification to personal data.
The EDPS emphasizes that the conclusion of an agreement between the EU and the US should take place under the Lisbon Treaty - depending on its entry into force – to guarantee better legal certainty, full involvement of the European Parliament and judicial control of the European Court of Justice.