18
occurred prior to the draft’s presentation; no green paper was written and few outside voices
were consulted in the directive’s formulation.
30
Instead, the Commission met with a series of
data protection experts to formulate potential regulation. And as is generally the case with
Community law, attempts were made to integrate pieces of national legislation into the
Community rule. For example, the central registration system was taken from the French and
British, the default prohibition of data processing was transposed from the German law, and
rules on sensitive data were integrated from the French system.
National data protection officials argued that the directive was not meant to
standardize enforcement but to guarantee individual rights at a minimum, albeit high, level
across the community. The President of the CNIL made the case most strongly with the
statement, “the Europe of trade must not take precedence over the Europe of human rights”.
31
Because data protection regulations are rooted in different national legal systems and
institutional environments, national regulatory systems should be employed to meet this goal
rather than having a unitary European solution. As Simitis has argued,
First, the directive does not signal the end of governance by national legislators…If the
directive hopes to achieve its goal of achieving a high level of efficient protection then it
cannot attempt to detail exact minimum standards for the entire economic community.
National legislators must have the capacity to develop rules which apply and extend the
principles formulated by the Community…
Additionally, it is important to entrust national control institutions. Only then will it be
possible to have an effective control mechanism which is close enough to the actual data
processing and which is able to confront dangerous bureaucratization.
32
of the package see Transnational Data and Communications Report (1990). “EC data protection package.”
5-6.
30
Although consultation is the traditional path to a directive, political objectives (guaranteeing the free
movement of labor and information) required a regulatory solution. The speed with which the draft was
written, no doubt, engendered resistance by the business community. The lack of consultation may also
have resulted in businesses misinterpretation of many articles and rejection of the first draft. This position
was offered by a senior official in the Internal Market directorate. Interview 28.
31
See Fauvet, J. (1989). "Privacy in the new Europe." Transnational Data and Communications Report. 17-
18.
32
The author’s translation from German. See Simitis, S. (1990). "Datenschutz ohne
Interpretationsakrobatik." EG Magazin. 4-5. For similar comments from the German data protection
community see Eickeler, R. (1990). "EG-Richtlinienentwurf ist ein bemerkenswerter Schritt." Handelsblatt.
Convention