CYIL vol. 9 (2018)

CYIL 9 ȍ2018Ȏ PROTOCOL MODERNISING THE CONVENTION FOR THE PROTECTION OF INDIVIDUALS… Europe. Jörg Polakiewicz, Legal Adviser of the Council of Europe, described the situation fittingly as follows: “Substantively, the joint action of EU member states within the Council of Europe, however beneficial it may be in terms of combining the action of 28 member states, affects the multilateral character of negotiations and risks alienating non-EU member states. We witness indeed a certain apprehension on their part because, due to their numerical minority in the CoE, those member states feel that their views do not carry much weight in the negotiations. The dynamics of negotiations in Strasbourg are different if EU member states do not contribute individually and substantially to the discussions. A striking example of this has been the on-going negotiations on the modernisation of the Data Protection Convention (ETS 108).” 14 The negotiations in the GR-J were protracted and difficult, spanning for almost two years. This was due to the complex and sensitive issues to be resolved and included in the Protocol, which we shall describe in Part III. below. It was also not easy to find a workable compromise on the EU participation in the framework of the revised Convention, namely with regard to the voting rights of the EU in the Convention Committee. 15 However, with the tireless efforts of the GR-J Chairperson, expert assistance from the Committee of Ministers’ secretariat and the Department of Legal Advice and Public International Law (DLAPIL), as well as constructive attitudes of member States’ delegations, a final draft was agreed and transmitted for approval to the 1316 th session of the Committee of Ministers’ Deputies (on 15 May 2018). This enabled for the Protocol to be subsequently adopted at the ministerial level during the 128 th session of the Committee of Ministers in Elsinore, Denmark. 16 The CM decision, inter alia , stressed “ the importance of a speedy accession to the Protocol by the maximum number of the current States Parties to Convention No. 108 in order to facilitate the formation of an all-encompassing legal regime of data protection under the modernised Convention, as well as to ensure the fullest possible representation of States within the Convention Committee ”. However, the original opening for signature, scheduled for 25 June 2018, had to be postponed until 10 October 2018, due to a rather small number of Parties ready to sign the Protocol pending the completion of their internal procedures. Furthermore, the EU Member States had to wait for the authorising decision to be adopted by the EU Council, which finally was accomplished only on 26 June 2018. We shall look at the EU aspects of the procedure in more detail below in Part IV.

14 POLAKIEWICZ, J.: Legal challenges and opportunities raised by EU participation in Council of Europe treaties , presentation to the EU Working Party on Fundamental Rights, Citizens Rights and Free Movement of Persons (FREMP), Brussels, 25 April 2018, accessible at: https://www.coe.int/en/web/dlapil/-/legal-challenges-and- opportunities-raised-by-eu-participation-in-council-of-europe-treaties. 15 The voting rights provisions are contained in Elements for the rules of procedure of the Convention Committee, which form an Appendix of the Protocol. 16 Decision of the Committee of Ministers of 18 May 2018, document CM/Del/Dec(2018)128/5 (hereinafter as the “CM Decision”).

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