Local view for "http://purl.org/linkedpolitics/eu/plenary/2000-07-03-Speech-1-115"
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"en.20000703.8.1-115"2
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"I am most grateful to you, Mr President, for allowing me to speak on this important subject. Given the time available and the considerable amount of work we still need to get through this evening, I would like to confine myself to a few key points.
The safe harbour does not offer the same all-encompassing guarantee as the directive but as I said, we are not entitled to make the same demands as those in the directive. And that is no great loss to my mind. We must get this issue in proportion. Even in the European Union there have only been a small number of cases that have led to the payment of compensation.
The third change Parliament wants to see concerns the right to have data cancelled when it has been obtained or processed illegally.
In the safe harbour, the cancellation of data is a sanction that all dispute resolution bodies must have at their disposal, but it is for them to decide under what circumstances the sanction should be applied. The United States argues that cancellation is not a requirement according to OECD guidelines. Although these guidelines are open to more than one interpretation, it is difficult to completely rule out that of the United States. The working party of officials in charge of data protection does not deem the cancellation of data to be essential to proper data protection. Therefore, the Commission does not see any need to retain these changes for us to be able to deem the level of protection afforded by the safe harbours adequate. To make approval of the determination of adequacy conditional on these changes is more likely to end up sinking the safe harbour than achieving hoped-for improvements. I would like to leave you in absolutely no doubt about this. The United States has no desire to revisit the discussions again and the Commission also takes the view that the talks are over.
Both the individuals involved, whose data is transferred, and the economic actors need the safe harbour. The business communities on both sides of the Atlantic are in no doubt about that. The safe harbour will make it easier for data to be transferred and will ensure greater legal certainty. But at the same time, the safe harbour will dramatically improve protection for those involved. Data is now flooding across to the United States and a substantial amount is transferred with no protection whatsoever, as Mrs Palacio has just emphasised.
The safe harbour will not solve all our problems in one fell swoop and it will increase the data protection standards in the United State over a wider area than any other solution. Also, by simplifying data transmission procedures it will make evasion a less attractive prospect.
On a final note, I would again like to call on Parliament to adopt a clear resolution that gets the safe harbour system underway. Parliament will find it is in good company if it does. The working party of officials in charge of data processing issued an opinion on 16 May that you are bound to have seen. Everyone would have liked to see the safe harbour system improved further, but the officials did not reject the idea of a Council decision as matters stand, because in this way, it will be possible to put the system to the test in practice. Naturally they emphasised the need for close supervision and vigilance should the decision be implemented. The Member States, as has been mentioned this evening, gave unanimous support to the Commission’s draft decision when their opinion was sought at the end of May. Some of them had the same concerns as those that have come to the fore this evening in Parliament’s draft resolution. But they were all agreed that it was time to give the system a chance.
If Parliament were ultimately to support the Commission’s proposal, then it would not end up out in the cold. By giving expression to its concerns and encouraging the Commission to be vigilant, it would be adding its voice to that of the officials in charge of data protection However, if Parliament were to throw up obstacles, then this would not lead to any improvement in the safe harbour system but would only prolong the existing situation, which would do those involved and the business community no service. The safe harbour system is not perfect but the alternatives are no better.
I would like to leave it there. Allow me to say again how grateful I am to the rapporteur, Mrs Paciotti, also the committees that have been most involved in this and their Chairmen Mrs Palacio and Mr Watson, for their constructive work in this matter. I approach Parliament’s vote on this issue with confidence.
It is not clear to me from this draft resolution whether Parliament intends to make a decision on whether or not the Commission has exceeded its authority. Hence I would ask Parliament to make itself clearer in its resolution. Naturally the Commission believes that it has used its authority correctly with regard to its proposal for a decision on the safe harbour, and I hope that Parliament sees it the same way. Parliament would put the Commission in an extremely difficult position if it were to adopt an unclear or negative resolution. I might add that supporting Amendment No 1 would obviate such an undesirable outcome.
Paragraph 8 of the resolution now on the table states that the free movement of data cannot be authorised until all the components of the safe harbour system are operational. I take this example to mean that those of the United States’ documents that are at the draft stage at present, will have to be officially published before the decision is approved, and the Commission would agree with this. However, the Commission does not agree with the suggestion that we should only be able to proceed to a determination of adequacy once the safe harbour system has been in force for some time. There is one good reason as to why this will not work. American firms will not be prepared to make the investment necessary to fulfil the requirements of the safe harbour system while they are uncertain as to whether it is deemed to offer adequate protection. I do not think the chicken-and-egg analogy has much relevance here. Our decision is unilateral. I would like to emphasise this, also to Mrs Paciotti, who, incidentally, I would like to thank warmly for all the work she has put into this affair. So the chicken-and-egg analogy is irrelevant. The decision is unilateral and if the safe harbour system fails to accommodate the requirements stipulated by the United States then we might as well suspend or withdraw our decision unilaterally as well. I am not expecting us to have to go that far, because the very fact that we could do so will ensure assiduous implementation on the part of the United States.
Paragraph 7 of the draft resolution states that certain changes will have to be made before Parliament is prepared to agree that the safe harbour system affords adequate protection. Irrespective of the question as to whether applying these conditions falls within Parliament’s current remit, I would first like to point out that not one of these points is new to the Commission. On the contrary, these are improvements that we have always aspired to in our talks with the United States. But the American government has consistently refused to accept them. This refusal as it stands is insufficient reason for dropping them. But the key question is whether these changes are a
to arriving at a determination of adequacy. The Commission’s position, which is shared by all the Member States, is that although they are all desirable, none of the changes are necessary. And I would urge the honourable Members not to forget that we are to determine whether the safe harbour affords adequate protection and not whether it satisfies all the requirements of the directive. The first change that would have to be made concerns recognition of an independent right of appeal to an independent public body in the event of violation of the safe harbour principles. This is also a point that Mrs Paciotti made with some force. However, the safe harbour system already provides for independent resolution of disputes, and this is undertaken in numerous cases by private dispute resolution bodies. There are a whole host of reasons as to why we should encourage, rather than oppose, this alternative method of dispute resolution, which is often more user-friendly than judicial procedures. The safe harbour also provides for enforcement to be carried out by government bodies. It is not just self-regulation but self-regulation underpinned by legislation. And the two enforcement authorities recognised in the decision are the Federal Trade Commission and the Department of Transportation in the United States. Naturally, a private individual may have their reasons for wanting to take a matter to court in the United States. But an alternative method of dispute resolution need not be an obstacle to those seeking legal redress. To demand more would risk moving towards a system equivalent to that in the directive, when all we can ask is adequate protection.
The officials responsible for data protection in the European Union have themselves said, in an opinion that is quoted extensively in your draft resolution, that, in principle, self-regulatory systems afford adequate protection.
The point of the second change is make it obligatory for participating firms to compensate for the damage suffered by those involved in the event of violation of the principles. Participating firms will have to pay compensation in a whole host of circumstances, for example on account of their obligations pursuant to legislation in the United States."@en1
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