In the super-politics of the EU,  how will the  Council of Ministers play its cards on the Data Protection Regulation?

Fissures within the Council of Ministers could pose a threat to the review of Europe’s privacy law, according to some Brussels insiders. From what can be ascertained, the Council is not happy with a number of the provisions in the  Data Protection Regulation, currently in  its first reading in the European Parliament. The Council  is even split over the

very choice of  instrument used in drafting the new law. This does not bode well for its passage through the legislature.

Some Member States  in the Council are not happy with the use of a Regulation, and would prefer a Directive. The difference is that a Regulation is applied in exactly the same way in all EU member states. It becomes law instantly after being adopted. A Directive is more flexible in that Member States may take account of their own national situations, laws and preferences,  when implementing it. 

It is understood that the UK is among those Member States who would prefer  to take the route of a Directive.

 It also  seems that there are quite a few other  reservations  from several Member States. It seems that the overall position in the Council is tenuous.

 The Council’s agreement with Parliament’s position is needed in order to get  the  legislation adopted.  A speedy resolution of the internal disagreements will be essention if the stated plans of the  rapporteur, Jan-Phillip Albrecht, are to proceed.  Mr Albrecht has suggested that he wants to convene trilogues, or tripartite talks between the Parliament, the Commission and the Council, and those talks could begin by January 2014.  See Closed-door trilogues are on the data privacy agenda

 The Council has to put together its own opinion of the Regulation – known as the Common Position – before it can grant the mandate for such talks. The key question is whether it can do that by next January? Those in the know are suggesting it will not do it.  A divided Council  may struggle to summon up  the political will to pursue the  Regulation. In any event, it is  not conducive to a quick adoption.

That could flummox Mr Albrecht’s plans.

 Depending  on the strength of the objections in the Council of Ministers, there is a range of tactics that it may employ. If the objections are not too great and it is minded to bargain, the Council  may simply be obstructive. If they are major, and it does not want the Regulation adopted,  it may try  stalling or shelving it. On the other hand, if it does want the Regulation, but only on its own terms, it could try forcing through unacceptable compromises.

 This is EU super-politics. The Council bullies the Parliament, which either complies or bites back, and the Commission is both the the punch-bag and the mediator.

 We’ve seen it before in the Telecoms Package. Even a highly experienced politician like Catherine Trautmann  suffered enormous stress in the rapporteur’s role on the   high profile Telecoms Framework directive. The Council did not make it easy for her, and I suspect it won’t be easy for Mr Albrecht either.

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 If you’d like to read more about the Telecoms Package and how the European Parliament rapporteurs go about their work, see my book The Copyright Enforcement Enigma

This is an original article from Iptegrity.com and reflects research that I have carried out. If you refer to it or to its content, please cite my name as the author, and provide a link back to iptegrity.com. Media and Academics – please cite as Monica Horten, 2013,  EU data privacy reform – does the Council have the political will?  13 July  2013. Commercial users - please contact me.

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