Opinion of the
European Data Protection Supervisor (EDPS)
This opinion will take into
account the unique nature of the initiative, more specifically the fact that
major amendments in the substance of the provisions are not foreseen. The
EDPS will therefore focus on a number of more general issues related to the
initiative and its context. The amendments the EDPS proposes mainly serve to
improve the text without modifying the system of information exchange itself.
The EDPS:
- welcomes that the present
initiative takes a more cautious, gradual approach as a way of
implementing the principle of availability. However, he regrets the fact
that the initiative does not harmonise essential elements of the
collection and exchange of the different kinds of data included in the
initiative, needed to ensure compliance with the principles of necessity
and proportionality;
- regrets the fact that the
present initiative is taken without a proper impact assessment. He calls
on the Council to include such an assessment in the adoption procedure
and to examine, as part of this assessment, other possibly less
privacy-intrusive policy options;
- supports the approach of the
initiative relating to the different kinds of personal data: the more
sensitive the data, the more limited the purposes for which they can be
used and the more limited the access;
- regrets the fact that the
initiative does not specify the categories of persons that will be
included in the DNA databases and that it does not limit the retention
period.
The EDPS believes that this
Decision should not be adopted before the adoption of a Council Framework
Decision on the protection of personal data processed in the framework of
police and judicial cooperation in criminal matters, offering an appropriate
level of protection. He also believes that the provisions on data protection
in Chapter 6 of the initiative do not facilitate the exchange of personal
data but enhance the complexity of this exchange, in so far as they build on
the traditional notion of mutual legal assistance in criminal matters.
The EDPS recommends the
following amendments to the text of the initiative:
- including in Article 1 a
reference to Chapter 6 on data protection;
- including a definition of
non-coding part of DNA, as well as providing for a procedure ensuring
that, both today and in the future, no more information can be revealed
from the non-coding part;
- specifying the text of
article 7 (collection of cellular matters and supply of DNA profiles),
taking into account that the principle of proportionality requires a
more limited interpretation of this article;
- including a definition of
personal data in Article 24;
- specifying in Article 24 (2)
that Chapter 6 applies to the collection and processing of DNA material
and fingerprints in a Member State and that also the supply of further
personal data within the scope of this decision is covered;
- summarising article 24 (2) as
follows: “the provisions (on data protection) apply to data which are or
have been supplied pursuant to the decision”, deleting the provision
“save as otherwise provided in the preceding Chapters”;
- modifying Article 30 on
logging, in order to ensure that all activities relating to those data
are logged;
- modifying Article 31 (the
right to information and compensation), so as to guarantee the right to
information without need for a request;
- including in Chapter 6 a
separation of data relating to different categories of people (victims,
suspects, other people whose data are included in a database);
- adding a sentence to Article
34 stating that the Council shall consult the EDPS before the adoption
of such an implementing measure;
- including an evaluation
clause in Chapter 7 (final provisions and implementation).
More generally, the EDPS
recommends that the Council deals with the shortcomings of the initiative,
either by amending the text of the initiative and/or by including these
elements in a Council Framework Decision on data protection in the third
pillar. In the view of the EDPS, the first option (relating to the elements
mentioned in the preceding point) does not necessarily lead to a modification
of the system of information exchange itself and does not contradict the
intention of the 15 Member States that took the initiative not to change the
essential parts of the Prüm Treaty.