Proposal for a Regulation of the European Parliament and of the Council on the protection of individuals with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation) - Chapter I - Article 2(e) - scope of the General Data Protection Regulation and the Data Protection Directive - Hoofdinhoud

Council of the European Union

Brussels, 11 June 2015

PUBLIC

(OR. en)

8745/4/15

Interinstitutional File: REV 4

2012/0011 (COD) i LIMITE

DATAPROTECT 73 JAI 280 MI 295 DIGIT 33 DAPIX 73 FREMP 100 COMIX 216 CODEC 689

OUTCOME OF PROCEEDINGS

From: General Secretariat of the Council

To: Delegations

No. prev. doc.: 8745/3/15 REV 3

Subject: Proposal for a Regulation of the European Parliament and of the Council on the protection of individuals with regard to the processing of personal data and on the free movement of such data (General Data Protection

Regulation)

• - 

  Chapter I - Article 2(e) - scope of the General Data Protection Regulation and the Data Protection Directive

In annex appears the text of Article 1 and recitals 11a, 11b and 12 of the above-mentioned Directive

as it stands after the Coreper meeting on 9 June 2015.

Article 1

Subject matter and objectives

• 1. 

  This Directive lays down the rules relating to the protection of individuals with regard to the

processing of personal data by competent (…) authorities for the purposes of the prevention,

investigation, detection or prosecution of criminal offences or the execution of criminal penalties

or 1 the safeguarding against and the prevention of threats to public security. 2

Recital 11a

(11a) The activities carried out by the police or other law enforcement authorities are mainly

focused on the prevention, investigation, detection or prosecution of criminal offences, including

police activities without prior knowledge if an incident is a criminal offence or not. These can also

include the exercise of authority by taking coercive measures, such as police activities at

demonstrations, major sporting events and riots. 3 4

Those activities performed by the above-mentioned authorities also include the maintaining of law

and order as a task conferred on the police or other law enforcement authorities where necessary 5 to

safeguard against and prevent threats to public security, (…) 6 aimed at preventing human behaviour

which may lead to threats to fundamental interests of the society (…) protected by law and which

may lead to a criminal offence.

1 EL expressed concerns on the change from 'and' to 'or' because it meant that it broadened

the scope too much by decoupling the purpose of 'prevention of threats to public security' from the purposes of 'prevention of criminal offences': it preferred to revert to 'and'. LT asked if this wording of Article 1 of the Directive covered 'administrative offences'. Cion replied that it did on condition that it was linked to a potential criminal offence.

2 UK proposal to add the article: “and other activities for the purposes of police cooperation

and judicial cooperation in criminal matters”. RO preferred to refer to 'public order'.

3 Cion feared that activities normally carried out by administrative authorities such as in the

area of food safety - where authorities controlled if food was poisonous, thereby constituting

a criminal offence, - would then be covered by the Directive and not the Regulation - a

situation unacceptable to the Cion.

4 DE proposed add to the text „Hereby 'criminal offence' covers all infringements of the rules

of law which are punishable under national law, provided that the person concerned has the opportunity to have the case tried by a court having jurisdiction in particular in criminal matters”. AT proposed to add to the recital: „Administrative tasks such as tasks with regard to the right of association and assembly, immigration and asylum or civil protection shall not be considered as activities falling under the prevention of threat of public security.

5 CZ wanted to replace 'where necessary' to 'in order to'.

6 LT and RO preferred to keep the 'or'

(…) 7

Member States may entrust competent authorities with other tasks which are not necessarily carried

out for the purposes of the prevention, investigation, detection or prosecution of criminal offences

or the safeguarding against and prevention of threats to public security, so that the processing of

personal data for those other purposes, in so far as it is within the scope of Union law, falls within

the scope of the General Data Protection Regulation.

8

(…) 9

(…)

Recital (11b)

(11b) Since this Directive should not apply to the processing of personal data in the course of an

activity which falls outside the scope of Union law, activities of agencies or units dealing with

national security issues should not be considered as (…) activities falling under the scope of this

Directive.

7 AT proposed to add to the recital: 'Administrative tasks such as tasks with regard to the right

of association and assembly, immigration and asylum or civil protection shall not be considered as activities falling under the prevention of threat of public security.'

8 DE proposed to add the text: „If personal data collected for the purpose of prevention,

investigation, detection or prosecution of criminal offences, the execution of criminal penalties or the prevention of threats to public security are processed for another purpose, Regulation XXX applies. However, if Union law or the national law applicable to the competent authority which collected such data provides specific conditions to the processing of such data, the transmitting public authority shall inform the recipient to whom such data are transmitted about such conditions and the requirement to respect them”. Since further processing in Article 4 is still under discussion the Presidency decided not to add the text of this footnote at this stage.

9 Moved to recital 11b.

Recital 12

(12) In order to ensure the same level of protection for individuals through legally enforceable

rights throughout the Union and to prevent divergences hampering the exchange of personal data

between competent (…) authorities, the Directive should provide harmonised rules for the

protection and the free movement of personal data (…) processed for the purposes of prevention,

investigation, detection or prosecution of criminal offences or the execution of criminal penalties or

the safeguarding against and preventing of threats to public security. The approximation of

Member States’ laws should not result in any lessening of the data protection they afford but

should, on the contrary, seek to ensure a high level of protection within the Union. Member States

should not be precluded from providing higher safeguards than those established in this Directive

for the protection of the rights and freedoms of the data subject with regard to the processing of

personal data by competent (…) authorities.

Met de EU Monitor volgt u alle Europese dossiers die voor u van belang zijn en bent u op de hoogte van alles wat er speelt in die dossiers. Helaas kunnen wij geen nieuwe gebruikers aansluiten, deze dienst zal over enige tijd de werkzaamheden staken.

De EU Monitor is ook beschikbaar in het Engels.