In a report presented to the Bundestag on Tuesday (5 April), Germany’s data protection commissioner criticised the country for delaying its implementation of the EU data protection directive, particularly in the field of justice and home affairs. EURACTIV Germany reports.

The pandemic, which affected data protection and freedom of information in many areas, was a prominent feature in the annual report data protection commissioner Ulrich Kelber presented to Bundestag President Bärbel Bas on Tuesday (5 April).

“But this does not mean the rest of the world has not moved on. On the contrary: the old federal government presented a whole series of comprehensive laws at the end of the legislative period, for example, the IT Security Act or the new telecommunications laws, TKG and TTDSG,” Kelber said at a federal press conference in Berlin.

He bemoaned the fact that his office, again, had received many draft regulations with far too short a deadline for comment.

Implementation of the EU Data Protection Directive in the area of justice and home affairs is also lagging far behind schedule. The Federal Police Act in particular has not been amended accordingly.

“The Federal Police Act lacks the measures for control and enforcement that European law provides for. […] Actually, the corresponding regulation was ready in 2016 and since then there has been no realisation,” said Kelber.


Late implementation 

Germany has already shown extreme reluctance in implementing EU data protection rules and has missed some deadlines.

The ePrivacy Directive, for instance, was adopted at the EU level in 2009 but only fully transposed into German law last year, when the new law regulating data protection and privacy was adopted.

Germany is also late in adapting its Federal Police Act to EU law standards, something that should have been finalised before 6 May 2018. In the report, Kelber criticised the still-missing adaptation.

The draft to amend the law proposed by the previous government failed in the Bundesrat. Since the amendment would have given the police many new yet constitutionally problematic powers and encroached on the competence of the federal states, the current government is faced with the task of revising it again.

For instance, according to Kelber, the draft amendment’s authorisation for preventive surveillance of telecommunications was controversial.

The current coalition government has already taken up the issue and is pushing for quick implementation.

“As the Greens’ parliamentary group in the Bundestag, we will work hard to ensure that the European legal requirements are finally implemented and that the powers of the supervisory authorities are not weakened in any way,” Konstantin von Notz, the Greens’ spokesperson on network policy, told EURACTIV.

The liberal FDP also favours adapting the legal basis for data protection violations. The aim is to allow supervisory authorities to react by issuing orders or prohibitions and to enable judicial review, Maximilian Funke-Kaiser, digital policy spokesman for the FDP’s parliamentary group, told EURACTIV.

The FDP and the Greens joined the Social Democrats to form a three-way ruling coalition after the last election in September 2021.

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Germany adopts new data protection and privacy law

German parliament this week adopted a law regulating data protection and privacy in telecommunications and telemedia. For the first time, the legislator transposed EU requirements on cookies from the bloc’s e-privacy directive. EURACTIV Germany reports.

Data protection and freedom of information  

In the new report, Kelber examined several pandemic-related issues, as well as the regulation of artificial intelligence and the handling of research data.

The commissioner warned against permanently using health data for verification purposes, as was the case during the COVID-19 pandemic. According to Kelber, in the long term, health data should not be used to gain access to places.

Employers should also not be given permanent access to health data, which is of sensitive nature and should benefit from special protection, Kelber said.

In 2021, the data protection commissioner received numerous notifications and complaints, including 10,106 relating to data protection and 622 to the right of freedom of information. Citizens submitted 6,829 complaints.

“The consistently high level of enquiries and complaints clearly shows how high the citizens’ need for advice is and how important informational self-determination is, especially in the digital age,” commented Greens Bundestag MPs Konstantin von Notz and Misbah Khan.

Khan and von Notz also urged that the Commissioner and his expertise be incorporated into legislative processes at an early stage “because the challenges ahead of us as legislators remain great in view of rapid technological progress.”

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[Edited by Luca Bertuzzi/Nathalie Weatherald]

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