Draft additional protocol to Convention ETS No. 108 on supervisory authorities and transborder data flows

Doc. 8825

18 September 2000

Draft additional protocol to Convention ETS No. 108 on supervisory authorities and transborder data flows

Opinion No. 217 (2000)

Reply from the Committee of Ministers

adopted at the 720^th meeting of the Ministers’ Deputies (13 September 2000)

The Committee of Ministers noted with interest the Parliamentary Assembly’s Opinion No. 217 (2000) on the draft additional protocol to Convention ETS No. 108 on supervisory authorities and transborder data flows. The Committee of Ministers thanks the Parliamentary Assembly for having submitted its Opinion in good time and welcomes the fact that in its Opinion the Parliamentary Assembly supports the adoption of the draft protocol.

The Committee of Ministers forwarded the aforementioned Opinion to the Consultative Committee of the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data. The Committee of Ministers, having taken note of the T-PD’s comments on the Assembly’s proposals and request for opinion, notes that the Assembly’s concerns have to a large extent been taken into account by the T-PD either in the Explanatory report to the Protocol or in the context of the Consultative Committee’s future activities.

With regard to the Assembly’s request for an opinion by the Consultative Committee on the compatibility of the agreement, currently being negotiated between member states of the European Union and the United States, containing safeguards regarding transborder data flows between Europe and the United States, with the principles of the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (ETS no. 108), the Committee of Ministers informs the Assembly that “the Consultative Committee considers that it is too early to give, at this state of the discussions between the European Union and the United States, the opinion requested by the Parliamentary Assembly. Nevertheless, the Committee wishes to draw attention to the contents of its discussion as reflected in paragraphs 25-28 of this Report.” The Committee of Ministers shares the view of the T-PD. The relevant extracts from the T-PD report are appended to this reply.

It also wishes to inform the Assembly that the T-PD could, if necessary, and at the request of a Party to Convention ETS no. 108, in accordance with Article 19.d of the Convention, reconsider this question at a later stage with regard to implementation of the provisions of the additional protocol relating to transborder data flows to third-party countries or organisations, in co-operation with representatives of the European Union.

With regard to the recommendations contained in paragraphs 10 to 12 of the Opinion, the Committee of Ministers believes that it is up to each member state to decide whether it should sign and subsequently ratify the Convention and its protocol on supervisory authorities and transborder data flows. However, the interest with which both contracting states parties and member states which are not contracting parties but observers to the Committee set up under Article 18 of the Convention, and the European Union participate in the work of the Committee is an encouraging sign of the importance which these countries and the European Union attach to the problems addressed by the Convention and to the effective implementation of the principles of data protection.

Accession by the European Communities to the Convention will become effective when all contracting parties have accepted the amendment to the Convention making such accession possible. To date, the amendment has been accepted by 9 out of 20 states.

Lastly, with regard to the means of helping member states to familiarise themselves with the Convention with a view to accession, the Committee of Ministers recalls that all member states are able to participate, as observers, in the meetings of the Consultative Committee and points out that many states avail themselves of this opportunity.

Furthermore, many bi-lateral seminars are organised in the framework of ADACS programmes with a view to helping countries that have not yet adopted laws on data protection to do so.

Three states have recently signed the Convention, clearly showing that the accession process is continuing at the level of member states.