The European Union Legislative Process
The Ordinary Legislative Process as it relates to Privacy and Data Protection legislation
The General Data Protection Regulation is currently undergoing the Ordinary Legislative Procedure within the relevant Union legislative bodies. As the name suggests, this is the most common form of legislation creation as 89% of all proposals between 2009 and 2014 underwent this process. Currently, the GDPR has just reached an agreement in the informal negotiation stage referred to as the “Trilogues” following the adoption of the first readings by both the Parliament and the Council. The following article will outline the parties involved in the legislative process, what exactly this regulation has been through thus far, and what is yet to come.
There are three European authorities officially responsible for the legislative process, and two advisory bodies worth noting for their specific relation to data privacy:
The European Commission is the EU’s executive body. It represents the interests of the European Union as a whole through a total of 28 commissioners, one from each member state, and 23,000 staff members. The body works on the basis of collective decision-making in order to complete its roles of proposing legislation, enforcing European law (with the help of the Court of Justice), representing the EU internationally, setting objectives, and managing EU policies and the budget.
The European Parliament is the only body whose members are directly elected by the citizens of the EU. It’s aim is to preserve democracy and represent the interests of the people. It holds powers over passing legislation, the EU budget, and the President and appointments of the Commission. It is made up of 751 members, elected to five year terms, with representation based upon the population of each member state.
Council of Ministers of the European Union
The Council of the Ministers of the European Union represents the governments of each member state. Its shares the power of adoption for legislation and the budget with Parliament, and also coordinates policy for the individual member states as well as foreign and security policy for the Union. Based on proposals from the Commission, the Council is the authoritative body to conclude and sign off on international agreements. The council meetings are attended by representatives (either ministers or state secretaries) who have the right to commit their countries and cast their vote.
Article 29 Data Protection Working Party
The Article 29 Working Party is and advisory body set up under the Data Privacy Directive 95/46/EC and is composed of representatives of the national data protection authorities (DPA), the EDPS and the European Commission. Its role is to advise the Commission on general data protection matters as well as laws from the EU that may affect data privacy. It also promotes the uniform application of the Data Protection Directive across the entire EU.
European Data Protection Supervisor
The European Data Protection Supervisor is the independent supervisory authority set up in 2014 by the Parliament and Council to advise EU administrations on the processing of personal data as well as supervising these bodies to ensure compliance to their own regulations. The EDPS also handles complaints and monitors new technologies related to the processing of personal data.
The ordinary legislative procedure covers the majority of what is known as secondary law, which is derived from the principles and objectives set out in EU Treaties and includes regulations, directives and decisions. It is always important to note that the GDPR is a regulation, which is immediately applicable across the Union, rather than a directive, which must be transposed into national law by each individual member state. The process begins with a proposal by the Commission, which is to be either adopted, rejected, or amended through a process of co-decision between the Parliament and the Council. The Parliament is first sent the proposal in order to make its first reading, to which is accepts or makes amendments to, before passing it on to the Council for it’s own first reading. If the council adopts the Parliament’s position, the legislation is passed, however if there are any further amendments made by the Council, all three bodies meet for the Trilogue negotiations. It is possible for a piece of legislation to continue on to a second reading by both the Parliament and the Council, and even still a final stage known as the Conciliation stage. If the legislation fails to be adopted at any stage, it can only be resurrected as a new proposal from the Commission, to repeat the entire process again.
The GDPR was initially proposed by the Commission in January of 2012, amended by the Parliament in its first reading in March of 2014, and most recently amended by the Council in its first reading in June of 2015. The first trilogue meeting was held on the 24th of June, with a stated goal from the three EU bodies to reach an agreement by the end of 2015. However, these negotiations can be extended by agreement among the leaders of each party as per the rules set out by the Joint Declaration on Practical Arrangements for the Codecision Procedure, which govern the trilogue meetings. A more robust timeline of events for the GDPR can be found here, and a discussion of the topics likely to have been the most intensely debated can be found here.
A political agreement was made on 15 December 2015, leaving the regulation to be signed in January 2016 by the Presidents and Secretaries General of both the Parliament and the Council, at which time the text will be published in the Official Journal of the European Union. The regulation will be directly binding throughout the EU following the two year grace period beginning on the date of publishing.