European Ombudsman
Emily O'Reilly
European Ombudsman
Ms Vĕra Jourová
Commissioner responsible for Justice,
Consumers and Gender Equality
European Commission
Strasbourg, 02/05/2016
Re: Use of the title 'Ombudsperson' in the EU-US Privacy Shield agreement
Dear Commissioner Jourová,
Thank you for your response of 11 April 2016 to my letter of 22 February
2016, the purpose of which was to obtain information on the proposed use of the
term 'Ombudsman' in the EU-US Privacy Shield agreement. Specifically, I asked
how the impartiality and independence which form an essential part of an
Ombudsman institution can be reconciled with the fact that the office foreseen
in the agreement would be part of a government department that supervises
government agencies.
Please note that my primary concern is to seek to ensure that the term
'Ombudsman' is not used by bodies that do not enjoy the requisite standard of
independence for fear that this would jeopardise the public’s trust in the institution.
While it is not yet the case at the EU level, you may be aware that the term
'ombudsman' enjoys legal protection in certain EU Member States, such as Denmark
and Ireland, as well as in other countries such as New Zealand.
I note from your response that the Commission acknowledges that the
Ombudsperson mechanism foreseen in the agreement may differ in a number of
aspects from an Ombudsman as defined by the International Ombudsman Institute
.
In your view
“this is explained by the specific purposes of the mechanism, and the
particularly sensitive context of national security“. Be that as it may, it calls for further
reflection on the appropriateness of using the term 'Ombudsperson'.
My services have now examined the Commission’s draft adequacy decision
(hereafter, the Decision) and, in particular, Annex III containing details on the
'Ombudsperson Mechanism Regarding Signals Intelligence'. The new complaint-
handling position within the Department of State will be assumed by the Under
Secretary of State, who also serves as Senior Coordinator for International
OUT2016-005890
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02-05-2016
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Information Technology Diplomacy. According to Article 1 of Annex III, the Senior
Coordinator will serve as the Privacy Shield Ombudsperson and designate
additional State Department officials, as appropriate, to assist her in the
performance of her responsibilities. It is further specified that the Under Secretary is
independent from the US intelligence community and reports directly to the
Secretary of State.
Article 8 of the EU Charter identifies the essential elements of the
fundamental right to the protection of one's personal data and, in its third
paragraph, stipulates that "
[c]ompliance with these rules shall be subject to control
by an independent authority." The Court of Justice of the European Union has
held in relation to national data protection authorities established under
Directive 95/46/EC1 that:
“In relation to a public body, the term ‘independence’
normally means a status which ensures that the body concerned can act completely
freely, without taking any instructions or being put under any pressure ”.2
In its recent
opinion on the Decision3, the Article 29 Data Protection Working Party (WP29)
expressed concern that this new institution is not
“sufficiently independent and is not
vested with adequate power to effectively exercise its duty and does not guarantee a
satisfactory remedy in case of disagreement”. Against this background, please allow
me to make some additional remarks in relation to the features of the
Ombudsperson Mechanism, drawing in part on the recent WP29 Opinion:
First, the proposed Ombudsperson serves as both Senior Coordinator and
Under Secretary of State. From the wording of the Decision, it is not clear whether it
is always the case that the two positions coincide. If not, it is unclear by which of the
two designated officials the Ombudsperson position will be assumed in the future
if
either of them.
Second, the experience and qualifications required to be considered for
appointment as Under Secretary/Senior Coordinator may not necessarily align with
those required to serve as Ombudsperson. The Decision does not contain any
procedural rules aimed at preventing conflicts of interest as regards selecting and
appointing the Ombudsperson. It would be useful to provide for the necessary
safeguards in this regard, notably that an assessment of conflict of interest be carried
out prior to nominating officials to the position of Ombudsperson.
Third, the Decision does not contain specific provisions on the
Ombudsperson's dismissal. As outlined in the aforementioned WP29 Opinion, it
might thus be understood that the Ombudsperson can be dismissed from his/her
role in the same way that (s)he can be dismissed in his/her role of Under Secretary,
thus potentially undermining the body's independence.
Fourth, Article 3 of the Decision notes that the Ombudsperson will work
closely with other US Government officials, including appropriate independent
oversight bodies, to ensure that requests are processed and resolved in accordance
with applicable laws and policies. In particular, the Ombudsperson will coordinate
closely with the Office of the Director of National Intelligence, the Department of
Justice, and other departments and agencies involved in US national security as
1 Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection
of individuals with regard to the processing of personal data and on the free movement of such data,
OJ L
281 , 23/11/1995 p. 31.
2 Judgment of the Court of 9 March 2010 in case C-518/07,
Commission v Germany, (2010) ECR I-1885,
para 18.
3 Article 29 Data Protection Working Party, Opinion 01/2016 on the EU-US Privacy Shield draft adequacy
decision, adopted on 13 April 2016, http://ec.europa.eu/justice/data-protection/article-
29/documentation/opinion-recommendation/files/2016/wp238_en.pdf
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appropriate, as well as Inspectors General, Freedom of Information Act Officers, and
Civil Liberties and Privacy Officers. This provision does not outline in any detail
under which framework and for which purposes this close coordination will take
place. For example, there is no clarity as regards sharing of responsibilities and of
the investigative powers in the context of that coordination.
Finally, despite the fact that the Ombudsperson will be functionally
independent from the US intelligence community, the Department of State, within
which it will operate, is an executive department responsible for US foreign policy.
This department makes use of intelligence provided by the US intelligence
community. Given that fact and the Ombudsperson’s obligation to report to the
Secretary of State, it could be argued that this does not provide for the necessary
distance from the intelligence community that is required for the body to act in an
independent manner.
The above points reflect my concerns on this matter, specifically as
regards the use of the term Ombudsman/Ombudsperson and I thank you once
again for considering them.
Yo
Yours sincerely,
Emily
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