DPC cancels Parliamentary Hearing on EU-US transfers

Mar 18, 2021

EU-US Transfers, a Parliamentary Resolution — and a Dramatic Exit.

As the Irish Times and the Financial Times reported yesterday evening, a substantial fight between the Irish DPC, the German BfDI and the European Parliament's LIBE Committee has emerged over the DPC's failure to enforce the GDPR on Big Tech. After Helen Dixon (Irish DPC) called into question other DPAs and the Parliament's Draft Resolution, she then cancelled her participation in a Parliamentary hearing scheduled for today.

European Parliament criticises the Irish DPC. The Parliament's Draft Resolution voices "concern" that the DPC started a lengthy litigation (since 2013) instead of deciding on Facebook's EU-US transfers. It said that the DPC is also slow on other cases. It also called on the European Commission to start an infringment procedure against Ireland "for not properly enforcing the GDPR".

The Irish DPC accused Parliamentarians of "prejudice". In two letters (9 February 2021 and 12 March 2021) Ms Dixon accused Members of the European Parliament of "untested assumptions" and "prejudice". Parts of the resolution were in her view "not the product of any kind of rigorous and informed analysis". However, most of her criticism was not backed up by factual evidence, as pointed out in a letter by Mr Schrems and later by the Federal German DPA (see below).

"While there were some points that were accurate in Ms Dixon's letters, much was based on 'alternative facts'. It seems she wanted to push the Parliament to change a resolution that she saw as unfavourable. We have pointed the accurate and inaccurate elements out in a letter to the Committee." — Max Schrems, noyb.eu

Hearing requested and cancelled. The European Parliament regularly conducts hearings on various topics. The hearing on the EU-US data transfers took place in September 2020 with EU Commissioner Didier Reynders, the head of the EDPB (Dr Andrea Jelinek) and the noyb chair and plaintiff in the case (Max Schrems). It is common to have a panel representing different views in such hearings. It is entirely up to the Committee to decide who to hear. As Helen Dixon was not invited in September, she requested in two letters that she must be listened to in an additional hearing — a rather extraordinary request. When the Committee Members offered her a hearing after she insisted in a second letter, but also invited Dr Jelinek and Mr Schrems, Ms Dixon suddenly declined to participate.

"She pushed the Parliament to have a separate hearing for her. When the Committee then scheduled that special hearing just for her, she tried to set the rules of the hearing, and insisted that other panelists must not be present. The Parliament has declined to depart from standard procedures. Ms Dixon then refused to participate in the hearing that she had demanded." — Max Schrems, noyb.eu

Irish DPC also lashed out at other DPAs. In the letters to the Committee Ms Dixon strongly criticised other Data Protection Authorities (DPAs), and claimed a "failure on the part of some DPAs to understanding key concepts". She especially criticised German DPAs (the Federal DPA as well as the Berlin and Hamburg DPA), wrongly suggesting that court decisions overturned their work.

DPC "isolated". In response, Ulrich Kelber, Chairman of the German Federal DPA sent a letter (English Translation) that rejected Ms Dixon's allegations. It said they were "wrong" and that "Ms Dixon makes statements, which on the one hand reflect her personal views in a very one-sided manner and on the other hand often leave her isolated in the circle of European data protection supervisory authorities."

The letter of Prof Kelber mentioned that the Federal DPA alone has sent more than 50 complaints on WhatsApp to the DPC, none of which has been decided to date, and went on to say that the DPC "to a certain extent prevents any initiatives by other supervisory authorities".

"The other authorities have long held back from openly critizising the Irish DPC. These authorities must cooperate to enforce the work GDPR. The Irish DPC makes this almost impossible. We see the result for citizens in our daily work, where the DPC does not even answer calls or emails from other DPAs. Procedures take many years instead of just a few months." — Max Schrems, noyb.eu

Update (9:30): It came to our attention that the DPC has itself published parts of the correspondance with the European Parliament (excluding the Letter from the BfDI and Mr Schrems) on its website. This also includes a letter from 16 March 2021 - that we chose not to publish as they seem to be even more explicit than the letters below. In the letter of 16 March 2021 the DPC also directly lashes out at Mr Schrems, used again partly misleading arguments and explicitly demands to be heard alone - also excluding the head of the EDPB. The Parliament's procedure is even called "perverse". The response by the Parliament sets out the rules of procedure, but Ms Dixon then refused to participate in a final email if not on her terms.

Timeline:

  • In September 2020 the European Parliament's LIBE Committee held a public hearing with Commissioner Didier Reynders, the head of the EDPB (Dr Andrea Jelinek) and the noyb chair and plaintiff in the case (Max Schrems), on the way forward after the "Schrems II" ruling. This led to a draft resolution criticising the Irish DPC.
  • The head of the DPC (Helen Dixon) sent a letter on 9 February 2021 to the Committee demanding to be heard.
  • Mr Schrems has responded in a letter on 26 February 2021 clarifying some of the accurate and also inaccurate arguments by Ms Dixon.
  • ​​​​​The DPC sent an email on 3 March 2021 with its Annual Report and another letter on 12 March 2021 insisting on a hearing.
  • ​​​​​​​The Parliament  LIBE Committee scheduled a hearing for Thursday 18th of March, also inviting Dr Jelinek and Mr Schrems.
  • On 16 March 2021 the head of the German Federal DPA (BfDI) sent a letter correcting the DPC's allegations (English Translation)
  • Instead of joining the hearing that she demanded, Ms Dixon has informed the European Parliament on 16 March 2021 that she does not want to be heard, unless she would be heard alone, which the Committee denied her.