PDF to HTML - Convert PDF files to HTML files

Europaudvalget 2011-12
KOM (2012) 0011 Bilag 1
Offentligt

FEDERATION OF EUROPEAN DIRECT AND INTERACTIVE MARKETING

PUBLIC AFFAIRS & SELF-REGULATION

23 March, 2012

CALL FOR A BALANCED APPROACH TO

SUBSIDIARITY AND PROPORTIONALITY

IN THE REFORM

OF THE EUROPEAN DATA PROTECTION FRAMEWORK

SUMMARY

On 25 January 2012, the European Commission adopted a proposal for a reform of the

European data protection framework. National Parliaments have eight weeks to submit a

reasoned opinion as to whether the proposal complies with the principles of subsidiarity and

proportionality.

FEDMA urges national Parliaments to take advantage of this opportunity to demand a more

balanced approach in the reform process. This is especially true with respect to the

fundamental principles of subsidiarity and proportionality.

Instead of a balanced approach, the European Commission proposes a rigorous data

protection regime across all areas. The present proposal of the General Data Protection

Regulation not only takes away essential national responsibilities, it also provides for an

excessively strict, severely bureaucratic and vastly unpredictable framework.

The proposed General Data Protection Regulation does not comply with the principles of

subsidiarity and proportionality, as it constitutes a serious threat for businesses in Europe. If

adopted in the present form, it will hinder innovation and economic growth and will lead to

substantial job loss. The National Parliaments have to raise their voice to avoid such

consequences.

Article 6 of Protocol No 2 on the Application of the Principle of Subsidiarity and

Proportionality (Official Journal 30.3.2010 - C 83/206).

Federation of European Direct and Interactive Marketing

5 Avenue Ariane, 1200 Brussels, Belgium; Tel: +32 2 778 99 20; Fax: +32 2 778 99 24

E-mail: [email protected]; Web site: http://www.fedma.org

PDF to HTML - Convert PDF files to HTML files

CONSIDERATIONS

With respect to the issues of subsidiarity and proportionality, FEDMA urges national

Parliaments to take the following concerns into account:

Subsidiarity

According to the general principle of subsidiarity in the European Union, law-making

decisions should be taken as closely as possible to the citizens affected. In violation of this

rule, the proposal provides for extensive rights for the European Commission to develop

fundamental data protection rules on its own. In addition, the proposed procedures (the so-

called “delegated acts” and “implementing acts”) do not include the checks and balances of

an orderly legislative process. They also do not require industry consultation, which is

essential to ensure that measures are practical in a global economy.

The approach proposed by the European Commission will restrict autonomy of national data

protection authorities and courts to implement data protection rules in an appropriate

manner. Under the proposed approach, businesses will be faced with ever changing

standards that could be enacted very quickly. Such procedures will take away the

consistency of the regulatory framework and make the future framework vastly

unpredictable. Businesses will have no reliable basis for long-term investments or the

development of innovative business models.

The proposed rights of the European Commission to adopt “delegated acts” and

“implementing acts” should be limited to those issues which relate to the transfer of

personal data to third countries only. In all other areas, the powers of the European

Commission should be removed.

Proportionality

The general principle of proportionality requires that all legal initiatives of the European

Union achieve a legitimate goal with the least onerous measures. The proposed General

Data Protection Regulation does not comply with this principle, because its provisions are

not proportionate to the objective of protecting individuals’ rights and giving them more

control. It is imperative for businesses that a more balanced approach be taken. FEDMA

therefore, calls for an intensive review of the reform under the principle of proportionality.

Such review should take into account the following concerns:

Federation of European Direct and Interactive Marketing

5 Avenue Ariane, 1200 Brussels, Belgium; Tel: +32 2 778 99 20; Fax: +32 2 778 99 24

E-mail: [email protected]; Web site: http://www.fedma.org

PDF to HTML - Convert PDF files to HTML files

The proposal is excessively strict:

The proposed General Data Protection Regulation

extends the scope of data protection law and limits flexibility to use data for

legitimate business purposes (for example, to customize product offerings or to

operate credit information bureaus). By limiting this flexibility, the proposal requires

businesses to request consent from individuals in situations where such a request is

not proportionate. At the same time, the proposal makes it more difficult to gain

and prove valid consent. As a consequence, businesses will have difficulties not only

marketing their existing products, but also operating established and innovative

business models. Companies lose the right to know their customers. By introducing

rigorous sanctions of up to 2% of the worldwide revenue of a business, extended

enforcement powers of data protection authorities and additional consumer

protection group enforcement rights, the proposal causes an unjustified level of

compliance risks for businesses.

The proposal is severely bureaucratic:

The proposal introduces administrative and

operative burdens for businesses that are not proportionate and mostly technically

unfeasible (for example, the “right to be forgotten”, “privacy by design”, “privacy by

default”, extended documentation duties, prior impact assessment and approval

requirements, new administrative procedures at the European Commission level, a

general obligation to inform about data breaches without undue delay as well as

unlimited data access rights including the “right to data portability”).

It also

increases the responsibilities and liabilities of service providers (for example, by

undermining established liability rules and exemptions) in a disproportionate way.

The European Commission has not given any convincing reasons for the enormous increase

in restrictions proposed in the draft Regulation. For the majority of the changes, there is no

justification as to why the already high level of protection under the existing data protection

framework should be increased any further with effect to all types of businesses. By

increasing protection where it is unwarranted, the European Union will not only damage its

own economy. The approach will also jeopardize global harmonization efforts in data

protection law by embarking down a rough path where other countries in the world are not

likely to follow.

About us:

The Federation of European Direct Marketing (FEDMA) represents the direct marketing

sector at European level. Its national members are the Direct Marketing Associations (DMAs)

representing users, service providers, list brokers, e-mail marketing specialists, call center

Federation of European Direct and Interactive Marketing

5 Avenue Ariane, 1200 Brussels, Belgium; Tel: +32 2 778 99 20; Fax: +32 2 778 99 24

E-mail: [email protected]; Web site: http://www.fedma.org

PDF to HTML - Convert PDF files to HTML files

services, telemarketing companies and media/carriers of direct marketing and direct

companies. Direct marketing means in the context of our association that our members’

marketing efforts generally intend to engage willing consumers in an ongoing dialogue and

to create long-term and strong relationships. Our members are obliged to comply with the

laws and extensive self-regulatory frameworks. They are aiming for the freedom of lawful

communication and the ability to employ direct marketing efforts in their diversity to meet

the specific demands of their clients or the demands of the clients of their clients. The focus

of our association’s work lies on public affairs, exchange of information, quality, and junior

staff development. To contact FEDMA, please e-mail to [email protected].

Federation of European Direct and Interactive Marketing

5 Avenue Ariane, 1200 Brussels, Belgium; Tel: +32 2 778 99 20; Fax: +32 2 778 99 24

E-mail: [email protected]; Web site: http://www.fedma.org