ARTICLE 29 DATA PROTECTION WORKING PARTY

ECtHR nevertheless has high expectations of other authorities providing an effective remedy,
stating that such an authority must be “independent of the authorities carrying out the
surveillance, and are vested with sufficient powers and competence to exercise an effective
and continuous control” 69 .
In the Kennedy case and the Klass case the ECtHR provided insight in what these
expectations might mean in the context of secret surveillance, when the data subject is not
notified of the processing of his or her data. In both these judgements the authorities were
considered as independent by the ECtHR, especially independent of the bodies carrying out
the surveillance, but also independent from instructions 70 by any other authority. More
specifically in the Kennedy case, the Court approved of an independent and impartial
authority which had adopted its own rules of procedure and consisted of members that held or
had held high judicial office or were experienced lawyers 71 .
In undertaking its examination of complaints by individuals, the authorities in both judgments
furthermore had access to all relevant information, including closed materials. Finally, both
had the powers to remedy non-compliance. 72
In addition to the question whether the Ombudsperson can be considered a ‘tribunal’, the
application of Article 47 (2) Charter implies an additional challenge, since it provides that the
tribunal has to be ‘established by law’. It is doubtful however whether a Memorandum which
sets forth the workings of a new mechanism can be considered ‘law’.
As a consequence – with the principle of essential equivalency in mind – rather than
assessing whether an Ombudsperson can formally be considered a tribunal established by law,
the Working Party decided to elaborate further the nuances of the case law as regards the
specific requirements necessary to consider ‘legal remedies’ and ‘legal redress’ compliant
with the fundamental rights of Articles 7, 8 and 47 Charter and Article 8 (and 13) ECHR. In
its further analysis, upon discussing the scope of application of the new mechanism, the
Working Party will thus focus on the following criteria: the requirement to submit a request to
the Ombudsperson and to receive a response (‘standing’), the independence of the
Ombudsperson, its investigatory power to access the necessary materials, including classified
documents, and to request assistance from other agencies, and finally, its power to remedy
non-compliance.
3.5.3.4 The scope of application of the Ombudsperson mechanism
With regard to access to the Ombudsperson mechanism, the WP29 considers all persons
subject to EU law should be covered by the safeguards under the Privacy Shield. It would not
be acceptable to make a distinction based on nationality, especially given that the fundamental
rights in the EU apply to everyone, and not only to those holding an EU passport. Annex III
69 Klass § 56 and 67.
70 ECtHR, Klass § 21 and 53.
71 The G 10 Commission (at the time of the judgement) consists of three members, of which the Chairman must be qualified
to hold judicial office, Klass § 21 and 53)
72 ECtHR, Kennedy §167; Klass § 21 and 53.
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