PSOE and PP agree to renew the AEPD, forgetting that there is a regulated procedure for the election of the new President
The two main Spanish parties have forgotten, in their agreement for the election of the President and the deputy to the President of the Spanish data Protection Agency (AEPD), that things do not go the same way as in the case of the four judges of the Constitutional Court, the 12 councillors of the Court of Auditors or the Ombudsman himself.
Because the procedure was regulated by Organic Law 3 / 2018 of 5 December on the protection of personal data and guarantee of digital rights (LOPDGDD), approved precisely by the Spanish Parliament.
This has caused some discomfort and concern among specialists in this sector, by deciding PSOE and PP to put the choice of the top officials of the AEPD in the same bag.
And it shouldn't be like that.
Indeed, according to the sources consulted, if this is done, there is an imminent danger of political contamination that could undermine the Agency's' autoritas'.
Until 2015 the Directors-General, such as the current one, Sea Spain, were appointed by the Council of Ministers on the proposal of the Minister of Justice in office.
But since then, things have changed. Because there's not going to be a CEO anymore.
The structure of the EDP has changed
Article 48 of the LOPDGDD provides that there shall be a President, who shall have the power to issue its decisions, circulars and directives, in addition to being represented by this body, and a deputy to the President, to whom the President may delegate his functions and to replace him in the exercise of his functions, in accordance with the Organic Statute of the AEPD.
Both positions have to be appointed by the Government, on the proposal of the Minister of Justice-as before-from persons of recognized personal competence in the field of data protection.
But here things aren't the way they used to be. Because, according to this article, two months before the expiry of the term of office-in this case it has already expired-the Ministry of Justice has to order that the public call be published in the BOE on the basis.
However, the new Statute of the AEPD, approved by the Council of Ministers by Royal Decree 389 / 2021 of 1 June-only three months and 16 days ago -'in order to strengthen 'the independence of the AEPD, modified the appointment procedure.
Public bases: death and capacity.
Article 19 of this Regulation states that 'the requirements to be assessed by candidates to be assessed, enabling them to prove that they are persons of recognised professional competence, in particular in the field of data protection, on the basis of merit, capacity, competence and suitability, may include the legal capacities of the candidate, professional experience, ability to develop the work or technical knowledge, in particular in the field of data protection'.
Once the procedure is convened, article 20 states, a selection Committee, composed of six persons, must be convened: the Secretary of State for Justice, the Under-Secretary of the Ministry for the Presidency, Relations with the Courts and Democratic memory, a judge of the Administrative Division of the Supreme Court, proposed by the Ministry of Justice, a jurist of recognized competence with a minimum of 10 years of professional activity in the field of data protection-on the proposal of the Ministry of Justice, again-and a data protection officer from one of the
A member of the Law of the State appointed by the attorney general of the State, who shall have a voice but not a vote, shall serve as a Secretary.
Its composition must be equal and agreements must be taken by a majority.
"the procedure shall respect at all stages the principles of merit, capacity, competence and suitability, as well as the principle of equal treatment between women and men in access to public employment, in accordance with Organic Law 3 / 2007 of 22 March, for the effective equality of women and men, and the principle of equality in access to public office and office as laid down in article 23, paragraph 2, of the Constitution. The call shall also respect the principles of equality and non-discrimination of persons with disabilities," says article 21.
Once the selection Committee considers the applications together with the documentation provided, it has to conduct appropriate interviews.
And from that procedure, this Committee has to select one person for the Chair of the AEPD and another for the Adjunta.
The Minister of Justice, in this case Pilar Llop, will submit the protest of the selection Committee to the Council of Ministers and, after discussion, forward it to the Congress of Deputies, together with the supporting report.
But it is the Commission on justice that ratifies the appointment
'on the basis of an assessment of the merit, capacity, competence and suitability of the candidates, the Government shall forward to the Congress of Deputies a proposal for the Presidency and Deputy, accompanied by a supporting report which, after the required hearing of the candidates, shall be ratified by the Committee on Justice by a three-fifths majority of its members in the first ballot or, if it is not reached, by an absolute majority in the second ballot, which shall take place immediately after the first ballot. In the latter case, the votes in favour must come from Members belonging to at least two different parliamentary groups ", says Article 48.3 of the LOPDGDD.
This is what should be respected, which the two main Spanish parties have forgotten or are unaware of.
Which is to worry given that it was only 106 days ago that it was approved.
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