Proposition 54K2405

Projet de loi modifiant l'article 36bis de la loi du 8 décembre 1992 relative à la protection de la vie privée à l'égard des traitements de données à caractère personnel.

General information ¶

Submitted by

MR Swedish coalition

Submission date

April 25, 2017

Official page

Visit

Status

Adopted

Requirement

Simple

Subjects

protection of privacy personal data police vehicle

Voting ¶

Voted to adopt

CD&V Open Vld N-VA LDD MR

Voted to reject

∉

Abstained from voting

Groen Vooruit Ecolo LE PS | SP DéFI PVDA | PTB PP VB

Party dissidents ¶

• Olivier Maingain (MR) abstained from voting.

Contact form ¶

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Discussion ¶

May 18, 2017 | Plenary session (Chamber of representatives)

Full source

Sophie De Wit, rapporteur, refers to the written report.

Mr. Speaker, colleagues, in December, the Court of Cassation noted in four judgments that the police services did not have the permission to consult the DIV database for the search of owners of flashed vehicles. The current draft law should provide a solution to this. Our group supports this goal.

But what do we see now? The government resolves that legal uncertainty by creating a new legal uncertainty. The State Council had said that this problem should be resolved by an interpretative law, but that opinion was completely dismissed by the minister. A common law is now being introduced, which will enter into force with retroactive effect.

We have therefore submitted an amendment, in order to provide the certainty that the Council of State insisted on.

I invite you to approve our amendment. If this is not done, then the traffic fines will still be challenged and there is actually nothing resolved.

Mr. Speaker, my presentation will be somewhat the same as that of Mrs. Lambrecht.

What is this about? It is a repair legislation following judgments of the Constitutional Court. The Council of State, wonder over wonder, is so kind to tell the members of the government concerned that one should not solve the problem with a retroactive law, but with an interpretative law. The State Council is even so kind to formulate a proposal, a law article, that one could use and that perfectly meets all conditions. But what do they do? However, one prefers to add some things to it instead of solving the problem, and one chooses a retroactive law, without motivating the choice for retroactivity. This does not occur in the explanation of the draft, nor during the debates. That is a guaranteed guaranteed destruction by the Constitutional Court, which stands firm, if one does not even motivate why one acts retroactively.

Furthermore, I think that the conditions of the retroactive law should be taken into account. The Constitutional Court is rightly very strict in this, because otherwise governments – here is a good example of – will use retroactive laws for anything. In fact, the Constitutional Court says that when a retroactive law is adopted, it must be proven that it is indispensable for a goal of general interest. Furthermore, if that retroactive law has consequences for pending legal proceedings – this is the case here – then there is a ⁇ strict criterion, then there must be exceptional circumstances. These exceptional circumstances do not exist here. In any case, I do not read them in the explanation or in the statements held by the members of the government in the committee.

This week in the Public Health Committee I learned a number of new techniques from the N-VA. Mr. Spooren says the following about ecochecks: if there is uncertainty – there is no uncertainty at all, because the opinion of the Council of State is of a very different order – let us make the entry into force of the law at KB, so that the law comes into force only after the Constitutional Court has taken a decision.

I told Mr. Spooren in the committee that it is very original. We are always behind the power of change. We want to reward originality. I then asked if that would also be his position on the government’s bills that formulate major constitutional objections and objections to rights and freedoms. Two days later, therefore, we receive a first draft law from the government which clearly contains serious problems of constitutional law.

Preparing a retroactive law is really not a matter for kindergartens, but this is apparently a bill drawn up by kindergartens. Sorry, but I really can’t say otherwise. If one does not know that one should justify the conditions of retroactivity, then I wonder which lawyers consulted this government. I think, frankly, that she did not consult her, because anyone would know.

My group will submit an amendment, in the same sense as that of Mrs. Lambrecht, in which we simply take over the wording of a defective law article, as proposed by the Council of State. The parties of the majority would better follow and approve it.

Mr. Speaker, I agree with the observations made by some colleagues regarding the legal uncertainty generated by the retroactivity principle of this law, insufficiently motivated by the government.

On the other hand, it is time to put an end to the ambiguity or some form of legal uncertainty concerning the exploitation by police services of certain personal data. The Act of 8 December 1992 on the Protection of Privacy requires police services to request prior authorisation from the Sectorial Committee of the Commission on the Protection of Privacy for any electronic communication of personal data from other federal public services such as the Directorate for Vehicle Registration.

This formality has become obsolete in practice. If it had to be complied with by letter, this requirement would have been counterproductive for the efficiency of police services. Moreover, this requirement, provided by the law of 8 December 1992, was duplicated with an article of the law on the police function, article 44/1, which provides in particular that "in the framework of the exercise of their duties, police services may process information and personal data provided that the latter are adequate, relevant and not excessive, with regard to the purposes of administrative police and judicial police for which they are obtained and for which they are subsequently processed". In order to carry out their tasks, the police services may collect and process personal data after the opinion of the Commission on the Protection of Privacy.

The Royal Decree of 4 June 2003 had exempted the police services from the obligation to request this authorisation but using terms imprinted with an ambiguity that should be removed. The Court of Cassation emphasized that “providing such an exception in a royal decree and not in a law is, in addition, a source of legal uncertainty as to the consequences that would arise from the lack of authorization, in particular as to the validity of the evidence based on the exploitation of personal data.”

This draft law therefore aims to restore legal certainty, joining the opinion of the State Council and the Commission for the Protection of Privacy. On the other hand, it does not respond to the objections of the State Council with regard to the retroactive effect, nor does it respond to its request that the exemption from authorization be also provided for in the law establishing the Banque-Carrefour des Véhicules.

While the bill is primarily intended to restore certain legal certainty, it creates new causes of uncertainty. This would justify my group’s abstention on this bill. I thank you.

I have already responded extensively to the comments given in the committee. It is important that this bill provides a quick and efficient solution to the very important data flows in the various government databases, in particular between the police and the DIV.

It has become clear from several rulings of the Court of Cassation that the current system of authorisations has become largely counterproductive and has more reduced to a costly and inefficient formal requirement. With this legislative amendment, we effectively give police services the opportunity to rely on the clear legal basis that already existed in the past, to request and use that data from government databases, without having to go through the requirement of a formal authorisation again.

It is also very important for me to maintain a sustained privacy protection. In various services, data protection officers (DPO) are set up. They will be responsible for keeping the various data that the administrations hold about citizens. That is why, in the police services, there is already a DPO.

In fact, a double control mechanism is already in place, namely internally through a security and privacy consultant, and externally through the Control Body on police information and the Committee P.

I think that this modification of the law on the protection of privacy offers a broader legal solution, whereas an interpretative provision of the law of 19 May 2010 establishing the Banque-Carrefour des Véhicules presented a solution only for individual cases. The Court of Cassation has expressed itself in this regard.

More specifically, police services could thus access the data of the Carrefour Bank of Vehicles, but not to other databases of public services. We are addressing this problem by extending this access. That is why I think this bill deserves your support.