Local view for "http://purl.org/linkedpolitics/eu/plenary/2000-07-03-Speech-1-108"
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"en.20000703.8.1-108"2
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"Mr President, the right to confidentiality of personal data is a fundamental right in the European Union, but the market interest in the free movement of data is also protected.
The safe harbour system can only be considered to afford an adequate level of protection under article 25 of the directive if genuine protection is guaranteed for European citizens whose rights have been violated, that is if there is the possibility of getting the unlawfully processed data erased and of obtaining compensation for damages by means of recourse to a judge or arbitrator or any independent third party who has been assigned the task of guaranteeing that reparation is made for any harm suffered.
The resolution also calls for the transfer of data to be authorised only when the system is fully operative and for operation of the system to be adequately monitored. By this we are not asking the United States to change its system, even though there have been many calls in the United States from authoritative sources for legislation to be adopted governing the matter. Our only concern is for the European citizens to be adequately protected, as the European consumer associations request and as American consumers would also wish to be.
This is the essence of the resolution submitted for your examination. I call upon you to adopt it in order to ensure that an international model is not introduced which provides fewer guarantees in this sensitive issue and which other States might insist is enforced, but, above all, in order to give the European Parliament the opportunity to demonstrate that it is an assiduous defender of citizens’ rights, rights secured by Community law.
In order to keep a balance between these requirements, Directive No 46 of 1995 lays down a series of rules to be transposed by the Member States – which have indeed been transposed into national legislation – and provides for the establishment of an independent authority to ensure that these rules are observed in accordance with the principle of the voluntary disclosure of information: the data subject must therefore have the option to choose whether to consent to data processing and to have control over who processes the data and for what purpose. In addition to recourse to the guarantor authority, the right is also laid down for the data subject to have recourse to the law in the event of breach of the rights guaranteed to him by law.
In order to transfer data to third countries, it must be established whether the countries guarantee an adequate level of protection. Where this protection is not guaranteed, data can still be transferred under the appropriate contractual conditions: standard contractual clauses are currently being developed by the Council of Europe and other bodies in order to facilitate the drawing up of contracts with countries which do not guarantee legal protection.
The European Commission will ascertain that the third country provides adequate data protection and oblige the Member States to adopt standardised procedures.
Now, problems do not arise where the laws of the third country guarantee data protection. Switzerland and Hungary do currently guarantee data protection, and therefore the European Parliament has no reason to intervene since it has nothing to propose.
The case of the United States of America, where there is no general data protection legislation in the private sector, is different. Therefore, an attempt was made during the complex negotiations between the Commission and the United States Department of Commerce to find a solution which would allow the transfer of data to those private companies which voluntarily submit to a self-regulation system known as the ‘safe harbour’ system.
Recently, on 6 June, the European Commission sent us the instruments it had drawn up on the basis of the conclusions reached and which it considers constitute adequate protection.
The committee of representatives of the Member States expressed a positive opinion, but the committee of Member States’ guarantor authorities criticised the instruments. Some of the concerns expressed by the committee of guarantors may be considered to have been dealt with by the subsequent clarifications supplied by the Commission regarding, for example, the scope of the system.
Nevertheless, certain questions remain unresolved, in particular the fundamental matter of enforcement: the guarantee that the companies which use safe harbours will fulfil their undertakings. In fact, since there will be neither law nor contract, individuals do not have rights which can be invoked in Court. Means of controlling the safe harbour system do exist, with the possibility of the imposition of penalties, but these only come into play in the event of unfair or fraudulent practices. It is at the discretion of the Federal Trade Commission whether it takes them into consideration. The company responsible for processing the data also has the option of recourse to a private dispute resolution body of its choice, but this right is not available to the person whose rights may have been violated."@en1
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