COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL Way forward on aligning the former third pillar acquis with data protection rules
1. This Explanatory Memorandum (EM) relates to the Commission’s Communication on the review to be conducted by the Commission under Article 62(6) of the Data Protection Law Enforcement Directive (LED).
2. The LED entered into force on 6 May 2016 and Member States had, pursuant to Article 63(1), until 6 May 2018 to transpose it in their national laws. The LED applies to both domestic and cross border processing of personal data by competent authorities for the purpose of prevention, investigation, detection or prosecution of criminal offences and the execution of criminal penalties, including the safeguarding against and the prevention of threats to public security.
3. It is the first instrument that takes a comprehensive approach in the field of law enforcement, as opposed to the previous ad hoc approaches whereby each law enforcement instrument was governed by its own data protection rules. The LED is based on Article 16 of the Treaty on the Functioning of the European Union (‘TFEU’) and is the act through which the Union legislator gives effect to the fundamental right to protection of personal data enshrined in Article 8 of the Charter of Fundamental Rights, in the context of processing of personal data by law enforcement authorities.
4. Article 60 LED provides for a “grandfathering” clause by which the specific provisions for the protection of personal data in certain Union legal acts in the field of judicial cooperation in criminal matters and police cooperation remain unaffected by its provisions where they entered into force on or before 6 May 2016. The LED already applies to the remaining provisions of those acts.