EU Parliament Hearing: Data Protection Not A Trade Barrier, But A Fundamental Right

At a hearing on data flows and data protection in trade agreements this week, several members of the European Parliament called for the clear exemption of current and future data protection regulation from ongoing trade negotiations.

The 16 June hearing on “Trade agreements and data flows: Safeguarding the EU data protection standards” was jointly organised by the Committees on International Trade (INTA) and on Civil Liberties (LIBE).

Paul Nemitz, director for Fundamental Rights and Union Citizenship, DG Justice, that declared the original data protection exemption from Article XIV in the General Agreement on Trade in Services (GATS) is still considered sufficient to allow states to regulate data protection. (GATS exemptions here)

This general exemption has been introduced into the text of the Trade in Services Agreement (TISA) under negotiation by Europe, the US and 10 more member states, Ignacio Iruarrizaga, Head of Unit on Services and EU lead negotiator on TISA, reported at the hearing.

Nemitz meanwhile recommended against generalising the rules laid down in the GATS Annex on Financial Services as this could instead result in a greater liberalisation of data flows.

Nemitz rebutted the notion of data protection as a burden, made by Chris Sherwood, head of public policy, Allegro Group, on behalf of the Industry Coalition for Data Protection. “If somebody says privacy protection is a burden, it is like saying quality products are a burden,” Nemitz claimed, adding that EU industry have already started to use better data protection as a selling point.

The mere reliance on the GATS exemption to secure privacy and data protection regulatory flexibility for the future seemed not enough to several members of Parliament, including Jan-Philipp Albrecht (Green Party Group), lead rapporteur for the data protection regulation which has been cleared to proceed to the trilogue negotiations by a vote earlier this week by the Council.

Albrecht called for a “gold standard” in privacy and data protection. “I am looking for a horizontal exception for data protection,” he said with regard to TISA, but also the Transatlantic Trade and Investment Partnership (TTIP). Former Justice Commissioner and MEP (European People’s Party) Viviane Reding said: “Data protection is no trade barrier, it is a fundamental right.”

Reding is the INTA rapporteur for TISA and also initiated a monitoring group for that agreement, the first ever on a trade agreement (usually they are on countries). She warned that the TISA e-commerce chapter proposed by the US: “completely contradicts all European law we have on that.”

Reding also bashed loopholes in data protection commitments through national security exceptions. “The US always wants a horizontal solution for national security which then wipes out everything which has been agreed beforehand,” she said with the ongoing attempt to save the Safe Harbour Agreement.

Anna Fiedler from Privacy International said that of the 26 partners in the TISA, only four (including the US) do not have national privacy regulation. And, she said, this is true of the 12 Trans-Pacific Partnership negotiating countries, only Brunei and the United States.

“For me,” she said, “it looks as if one very powerful partner is trying to circumvent the majority of the other partners’ privacy laws through a binding trade agreement that trumps them all.”