The draft European Constitution was presented in May 2003. The proposed treaty contains a section on Fundamental Rights and Citizenship of the Union. The European Charter of Fundamental rights, which was adopted at the Nice summit, in 2000, will be an integral part of the treaty (section II, article 5, paragraph 1).

The right of every individual to the protection of his or her personal data will be stated twice in the treaty. In Article 36a, it says: "Everyone has the right to the protection of personal data concerning him or her", a phrase which is literally adopted from the European Charter of Fundamental Rights. Article 8 of the Charter adds: "Such data must be processed fairly for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law. Everyone has the right of access to data which has been collected concerning him or her, and the right to have it rectified. Compliance with these rules shall be subject to control by an independent authority."

To those provisions, Article 36a of the Treaty adds an item stressing the EU Council and Parliament's obligation to pass the according legislation. It is worth mentioning, however, that current legislation allowing data protection to be lifted for a multitude of purposes, mainly in connection with so-called security issues, is not challenged by these provisions.

As the charter is specifically drafted to bind European Institutions, article 8 section 3 implies the need for a European Data Commissioner. The charter does not limit the protection offered by the European Convention for the Protection of Human Rights and Fundamental Freedoms. as article 52 sec. 3 specifies that any rights that correspond to those already articulated by the Human Rights Convention shall have the same meaning and scope. Article 5 paragraph 3 of the treaty states that the European Union may accede to the European Rights Convention. This is a new development as the European Court of Justice had earlier advised against accession.

The charter differs from the Human Rights Convention in that it separately protects data privacy from general privacy. As all EU members are party to the Human Rights Convention, the draft constitution does not present a radical change for the protection of privacy. However, the inclusion of a section on data protection, the possible accession to the Human Rights Convention, the explicit protection of data and the obligation on Commission and Parliament to adopt rules relating data protection could be an improvement for privacy protection as a whole.

Draft Constitutional Treaty for the European Union
http://www.europarl.eu.int/comparl/conv/documents/traite_en.pdf

(Contribution by Lodewijk Asscher, Dutch legal expert)