Ministers’ Deputies
CM Documents

CM(2008)81 15 May 20081
——————————————

1031 Meeting, 2 July 2008
10 Legal questions


10.2 Consultative Committee of the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data [ETS No. 108] – (T-PD)

Abridged report of the 24th meeting (Strasbourg, 13-14 March 2008)

——————————————

I. INTRODUCTION

1. The Consultative Committee of the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (T-PD), established under Article 18 of the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data [ETS No. 108] (hereafter Convention 108), held its 24th meeting in Strasbourg on 13-14 March 2008. The agenda, as adopted by the T-PD, is set out in Appendix I. The list of participants can be obtained from the Directorate General of Human Rights and Legal Affairs.

II. POINTS SUBMITTED TO THE COMMITTEE OF MINISTERS FOR DECISION

2. The T-PD held a discussion on possible initiatives to bring about the accession of non-European states to Convention 108. It recalled the final declaration of the Montreux Conference of Privacy and Data Protection Commissioners2 in 2005, which called on the Council of Europe to “invite, in accordance with article 23 of the Convention for the protection of individuals with regard to automatic processing of personal data, non-member states of the Council of Europe which already have data protection legislation to accede to this Convention and its additional Protocol”. The T-PD pointed out that a number of non-European states – among which Israel, Burkina Faso, Cabo Verde - had recently adopted legislation in the field of data protection and had come to join the ranks of i.a Canada, Australia, New Zealand, Argentina and Uruguay as states with data protection legislation that could be encouraged to accede to Convention 108. Some of these states had already indicated informally their interest to do so. These accessions could be a step towards a much called-for universal right to data protection which is becoming all the more important in today’s world of borderless telecommunication networks. They would also contribute to reinforce the Council of Europe’s visibility in this area.

3. The T-PD therefore recommended that non-member states with a data protection legislation in accordance with Convention 108 should be allowed to accede to this Convention. It invited the Committee of Ministers to take note of this recommendation and to consider any subsequent accession request accordingly.

III. POINTS SUBMITTED TO THE COMMITTEE OF MINISTERS FOR INFORMATION

4. The T-PD:

i) elected Mr Joao Pedro CABRAL (Portugal) as Chair, Ms Eva SOUHRADA-KIRCHMAYER (Austria) as 1st Vice-Chair and Mr Jean-Phliilppe WALTER (Switzerland) as 2nd Vice-Chair for a second and last consecutive term of office starting on 14 March 2008. It also elected Ms Hana ŠTĔPÁNKOVÁ (Czech Republic), Ms Pascale COMPAGNIE (France), Ms Eva SILBERMANN (Germany) and Ms Stefania CONGIA (Italy) as members of the Bureau, for a two-year renewable term of office;

ii) held an exchange of views with Mr Karel NEUWIRT, Council of Europe Data Protection Commissioner;

iii) adopted a partial modification of its internal rules of procedure, as it appears in Appendix II. It instructed the Bureau with the task of proposing, for adoption by written procedure, further modifications concerning article 10 ter of this text;

iv) pursued the examination of the question of the formalisation of a fundamental right to data protection through an appropriate Council of Europe instrument and, in the absence of a consensus on this question, decided to consider it again at its next plenary meeting in 2009;

v) heard a presentation of the study on the application of Convention 108 to the mechanism of profiling. It decided to make this study available on the Council of Europe’s data protection website3 and instructed its Bureau, in collaboration with the expert team of the Centre de Recherches Informatiques et Droit of Namur university (Belgium), to prepare a draft recommendation to the parties to the Convention on personal data protection with regard to the process of profiling. It will consider this draft at its next plenary meeting in 2009;

vi) held an exchange of views on the implementation of its activity on the status and powers of data protection supervisory authorities;

vii) was informed of new developments regarding data protection issues in the field of co-operation in police and judicial matters;

viii) was informed about the co-operation with the Monitoring Group of the Anti-Doping Convention (T-DO) and the World Anti-Doping Agency concerning the ADAMS data base and the formulation of a new standard on data protection in the World Anti-Doping Code;

ix) heard a presentation on the activities of the Media and Information Society Division of the Directorate General of Human Rights and Legal Affairs;

x) agreed, subject to the availability of the necessary appropriations within the budget for 2009, to hold its next plenary meeting on 11-12 March 2009.

Appendix I

Agenda

I. Opening of the meeting

II. Adoption of the agenda

III. Statement by the secretariat

IV. Election of the chair, two T-PD vice-chairs and five bureau members

V. Exchange of views with Karel Neuwirt, data protection Commissioner of the Council of Europe

VI. T-PD’s working methods

required action: the T-PD will be called upon to discuss its working methods and to examine a proposal for a modification of its internal rules with a view to the introduction of a written procedure for the adoption of documents.

VII. Fundamental right to data protection

required action: the T-PD will be informed of developments regarding this issue and will have an exchange of views on the appropriate follow-up.

VIII. Profiling

required action: the T-PD will hear a presentation by professor Yves Poullet and Jean-Marc Dinant of their study on the application of convention 108 to the process of profiling and will decide an appropriate follow-up.

IX. Status and powers of data protection supervisory authorities

required action: the T-PD will be informed on the work carried out on this topic by the bureau in 2007 and will be invited to confirm the courses of action followed.

X. Current issues

Required action: the T-PD will have an exchange of views on current issues in order to make a decision if needed concerning an appropriate follow-up

- Data protection issues in the field of co-operation on police and judicial matters

- Proposal of a data protection standard from the World Anti-Doping Agency

- Accession to Convention 108 of non-European States

XI. Presentation by the media and information society division of their activities

XII. Information on the 2008 data protection day and on major developments in the data protection field since the 23rd meeting of the T-PD (15-16 march 2007)

XIII. Date of the 25th meeting of the T-PD: 12-13 march 2009

Appendix II

Modification of the T-PD’s internal rules, as approved by the T-PD at its 24th meeting

Consultative Committee of the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (ETS No.108): Rules of procedure

The Consultative Committee,
Having regard to the entry into force on 1 October 1985 of the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data,
Having regard to Article 20, paragraph 4 of the Convention,
Adopts the present Rules of Procedure:

Article 1: For the purposes of the Rules of Procedure, the following definitions are used:
- "Convention", means the Convention for the Protection of Individuals with regard to the Automatic Processing of Personal Data;
- "Committee", means the Consultative Committee of the Convention;
- "Representative", means the representative of a Contracting Party or, in his absence, the deputy representative appointed in accordance with the provisions of Article 18, paragraph 2 of the Convention;
- "Observer", means the observer of a member State of the Council of Europe which has not yet become a Party to the Convention as well as the observer of a non-member State appointed in accordance with the provisions of Article 18 paragraph 3 of the Convention.
- “Written procedure” means a distance voting process, using for instance electronic mail, telecopy or postal mail. (I)

Article 2: Representatives
1. Each Contracting Party shall communicate to the Secretary General of the Council of Europe, the name, address and functions of its representative to the Committee, of his deputy and, if necessary, of his advisers.
2. Each representative shall retain office until the Contracting Party has notified the Secretary General that the representative has been replaced.

Article 3: Observers
1. Any member State of the Council of Europe which is not a Party to the Convention shall communicate to the Secretary General of the Council of Europe the name, address and functions of the person appointed as its observer and, if necessary, of his adviser. The person appointed as observer shall retain office until the member state has notified the Secretary General of the Council of Europe that he has been replaced.
2. Any non-member State of the Council of Europe which is not a Party to the Convention shall communicate the name, address and functions of the person appointed as its observer, in accordance with the conditions laid down in Article 18, paragraph 3 of the Convention.

Article 4: Experts
1. The Committee may, by unanimity of the votes cast, decide to invite a person, or invite an Organisation to appoint a person, to participate in the work of the Committee as an expert or who may be available for consultation during all or part of a meeting.
2. The Organisation concerned shall communicate to the Secretary General of the Council of Europe, the name, address and functions of the person appointed.

Article 4 bis: International Institutions and Organisations
1. The Committee may, by unanimity of the votes cast, decide to invite international Institutions and Organisations to send one or more delegates to attend its meetings.
2. The Committee may, by majority of the votes cast, decide to withdraw such invitation. (V)

Article 5: Time limits for Notifications
The appointments referred to in Articles 2, 3 and 4 should as far as possible be notified at least one month before the date fixed for the opening of the meeting at which the persons appointed are to participate.

Article 6: Meetings
1. The Committee shall fix the dates of its meetings in consultation with the Secretary General.
2. The period between two meetings shall not exceed two years.
3. If one third of the representatives requests the convocation of the Committee, the Secretary General shall fix the date of the meeting in consultation with the Chairman of the Committee. This meeting shall take place, at the latest, four months after receipt of the request.
4. As a general rule, meetings shall be held at the seat of the Council of Europe in Strasbourg.

Article 7: Convocation
1. The meetings of the Committee shall be convened by letter of the Secretary General sent to the Governments, representatives and observers as well as to the experts invited in accordance with Article 4 of the Rules of Procedure.
2. The letter of convocation, accompanied by the draft agenda, shall be sent at least six weeks before the date fixed for the opening of the meeting.(I)

Article 8: Meeting Adjournment
After a meeting has been convened, any request for adjournment must be sent to the Secretary General at least two weeks before the original date fixed for the opening of the meeting. The request for adjournment will be considered as approved when the majority of representatives have made known their approval to the Secretary General seven days before the date originally fixed.

Article 9: Quorum
A majority of the representatives shall constitute a quorum for a meeting of the Committee.

Article 9 bis: Functions and competences
The Committee shall exercise the functions set out in Articles 19 and 20 of Convention. In particular, the Committee
1. shall elect a chair and two vice-chairs and the other members of the Bureau following the requirements set out in Articles 10 bis and 10 ter;
2. shall adopt the terms of reference of the Bureau;
3. shall adopt the work programme and determine priorities;
4. shall decide on the establishment of working parties, on their composition and on their terms of reference;
5. shall draw up draft legal instruments 7 with a view to their adoption by the Committee of Ministers,
6. shall adopt opinions and reports (II)

Article 10: Chair and Vice-Chairs
1. The Chair, the first Vice-Chair and the second Vice-Chair shall be elected from among the representatives for a period of two years. They shall be eligible for re-election for a second consecutive term of office.
2. The Chair shall direct the work and sum up the conclusions of the discussions.
3. The Chair shall retain the right to participate in the discussions of the Committee and to vote.
4. Whenever the Chair is absent or stands down, he shall be replaced in his role as Chair by the first Vice-Chair or if he is not available, the second Vice-Chair. If neither the Chair nor one or the other of the Vice-Chair can carry out his duties the Committee shall elect an acting Chair.

Article 10 bis: Membership, functions and competences of the Bureau
1. The Committee shall establish a Bureau to prepare the meetings of the T-PD and in particular:

    a. to prepare preliminary draft legal instruments; (IV)
    b. to draft opinions and reports;
    c. to prepare the programme of activities;
    d. to propose, with a view to their appointment by the Secretariat, experts for specific terms of reference;
    e. to carry out the activities conferred on it by the Committee;
    f. to report back to the Committee on its activities.

2. The Bureau shall be composed of the Chair and two Vice-chairs of the Committee, together with four elected members. The outgoing Chair may remain a member de iure of the Bureau for two years and the other members shall be elected from among the representatives on the Committee for a period of two years. The members shall be eligible for re-election.
3. The Bureau shall exercise the powers of the Committee when it is expressly authorised to do so by the latter. Before taking a decision, the Bureau shall consult the members of the committee and take account of their observations. When the Bureau exercises the powers of the Committee, its decisions shall be taken by consensus. Where there is disagreement, it shall submit the decision to the Committee. (II)

Article 10 ter: Procedure
1. The texts within the meaning of Article 9 bis paragraphs 5 and 6, submitted for the approval of the Committee shall be prepared by the Bureau. As a general rule they shall be subject to two readings by the Committee. A text may exceptionally be subject to a third reading if two-thirds of the representatives present at the second reading so request. During the second and third readings only those amendments presented in writing at least one month before the plenary meeting shall be debated.
2. As a general rule the Bureau shall adopt the texts it submits to the Committee by consensus. Where there is disagreement, the texts shall be adopted by a simple majority. The minority may present its point of view to the Committee in writing if it informs the Bureau beforehand. Once a text has been adopted, it shall be presented to the Committee by a rapporteur appointed by the Bureau.
3. All proposals by the Bureau shall be sent to the members of the committee, who shall have four weeks in which to send their observations to the Secretariat who shall forward them to all members of the Committee.
4. Where documents are sent by electronic mail, the Secretariat shall take the necessary measures to ensure that the electronic mail messages have reached the members of the Committee. (II)

Article 11: Secretariat
1. The Secretary General shall provide the Committee with the necessary staff and facilities.
2. The Secretary General or his representative may at any time make an oral or written statement on any matter under discussion.
3. The Secretariat shall be responsible for the preparation and distribution of all documents to be examined by the Committee.
4. The Committee may ask the Secretariat to draw up a report, a document or a study on any question within the framework of the work of the Committee and if necessary with the assistance of consultant experts.
5. The Secretary General shall ensure that the Committee is informed of the activities of other Committees or organs of the Council of Europe which may have a bearing on the discharge of its functions.

Article 12: Agenda
1. The Agenda shall be adopted at the beginning of each meeting on the basis of a draft prepared by the Secretariat in consultation with the Chairman of the Committee.
2. All proposals for inclusion on the agenda shall be communicated at least one month before the date fixed for the meeting to the Secretariat, who shall send them to the addressees of the letter of convocation.
3. Any document submitted in a language other than one of the official languages shall be accompanied by a translation into one of the official languages.

Article 13: Languages
1. The official languages of the Committee shall be those of the Council of Europe.
2. Any representative or observer may, however, use a language other than an official language provided that he shall himself provide for interpretation into one of the official languages.

Article 14: Publicity
1. Meetings shall be held in private. The Committee may decide to make public certain of its documents.
2. The Committee may, by unanimous agreement decide, at the end of its meeting, to make appropriate press statements on the decisions taken during the meeting.

Article 15: Voting
1. Subject to the provisions of Article 18 paragraph 3 of the Convention and of Article 4, Article 4 bis(V) and Article 14 paragraph 2, of the Rules of Procedure, the Committee shall take its decisions by a majority of the votes cast.

2. However, in matters falling within the competence of the European Communities, when requested by a majority of the representatives of the Parties present, including a majority of the representatives of non-member States of the European Communities, the Consultative Committee shall take a decision by a unanimous vote.(III)
3. Decisions may be submitted to a vote by written procedure if decided unanimously by the Committee. In urgent cases, a question may be submitted to a decision by written procedure at the initiative of the Chair and the agreement of the vice-chairs.(I)
4. The draft decision which is subject to a written procedure shall be sent by the Secretariat to the representatives. The representatives shall expressly acknowledge receipt of the draft. The representatives shall inform the Secretariat of their vote in writing within a fixed term and in no case in less than 4 weeks, except in urgent cases. In urgent cases, the fixed term is decided by the Chair with the agreement of the Vice-Chairs and may not be less than two weeks. Failure to inform the Secretariat in such term shall be considered to be an abstention. The Secretariat shall inform the representatives of the results of the vote. The result of the vote is recorded in the report of the following meeting of the Committee. (I)
5. The written procedure initiated by the Chair shall be interrupted if one representative requests within 7 days of receiving the draft that the draft be discussed during a meeting of the Committee, unless a majority of the representatives requests that the procedure goes ahead. (I)

Article 16: Reconsideration of a decision
When a decision has been taken on any particular matter, such matter shall not be reopened except at the request of a representative and with the approval of a majority of the votes cast. In matters falling within the competence of the European Communities, a decision shall also be reconsidered if at least two thirds of all Parties to the Convention which are not members of the European Communities so request. (III)

Article 17: Decisions and reports
1. The Secretariat shall prepare a list of the decisions taken by the Committee before the end of each meeting which will serve as a basis for the report provided for in Article 20, paragraph 3 of the Convention.
2. The Secretariat shall prepare with the agreement of the Chair as soon as possible after the meeting a compte rendu of the Committee's work.

Article 18: Requests for opinion under Article 19 (d) of the Convention
1. Any request for an opinion addressed to the Committee by virtue of Article 19 (d) of the Convention, shall be made in writing.
2. The request shall be communicated by the Secretariat to the representatives and to the observers.
3. The request shall be included in the draft agenda of the first meeting to be held after receipt of the request.
4. If the Committee does not express a unanimous opinion, mention shall be made in the report of the minority opinions if the authors so request.
5. The text of the opinion shall be communicated to the Governments of the Contracting Parties and to the observers.

Article 19: Proposals made under Article 19 (a) of the Convention
Any proposal aimed at facilitating or improving the application of the Convention shall be communicated to the Committee of Ministers as well as to the Governments of the Contracting Parties and to the observers.

Note 1 This document has been classified restricted until examination by the Committee of Ministers.
Note 2 http://www.privacyconference2005.org/fileadmin/PDF/montreux_declaration_e.pdf
Note 3 www.coe.int/dataprotection

(I) Text inserted or amended by the Consultative Committee at its 24th meeting (13-14 March 2008).

(V) Article 4 bis was inserted and the text was amended by the Consultative Committee at its 6th meeting (February 1992).

(I) Text inserted or amended by the Consultative Committee at its 24th meeting (13-14 March 2008).

Note 7 Namely Conventions or agreements and Recommendations.

(II) Article 9 bis, Article 10 bis, Article 10 ter were inserted by the consultative Committee at its 19th meeting (26-28 November 2003).

(IV) Amended by the Consultative Committee at its 14th meeting (3 September 1998) and at its 6th meeting (February 1992).

(II) Article 9 bis, Article 10 bis, Article 10 ter were inserted by the consultative Committee at its 19th meeting (26-28 November 2003).

Note (V) Article 4 bis was inserted and the text was amended by the Consultative Committee at its 6th meeting (February 1992).
Note (III) Text amended by the Consultative Committee at its 14th meeting (3 September 1998).
Note (I) Text inserted or amended by the Consultative Committee at its 24th meeting (13-14 March 2008).


 Top

 

  Related Documents
 
   Meetings
 
   Other documents