The Supreme suspends the renewal of the Data Protection Agency because the process is "root flawed"

The Supreme Court has ordered the renewal of the leadership of the Spanish Data Protection Agency (AEPD) to stop, considering that the process initiated in November by the Government "is flawed at the root as it deviates from current regulations."

The decision of the Contentious-Administrative Chamber responds to the request for precautionary suspension of one of the candidates included in the list to elect the new president of the AEPD, who considered that his fundamental right to access public office had been violated in conditions of equality “given the notorious fact that the appointment was decided before the selection process was convened.”

The leadership of the AEPD, led by Mar España, should have been renewed in 2019, but the election of the presidency, which was previously discretionary by the Government, has been regulated since 2018 by a law that requires a three-fifths majority of Congress.

The PSOE and the PP included the data protection agency in the agreement they reached last October to renew the Constitutional Court and the Accounts Court, and in the statement sent to the media on the night of October 21 to communicate the names of the elected for each position, revealed that the AEPD would have a president, Belén Cardona – Professor of Labor Law and current Undersecretary of Justice, Interior and Public Administration of the Generalitat Valenciana – proposed by the Socialists, and a deputy to the presidency ,

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But the law that regulates the AEPD since 2018 requires that its presidency come out of a public call, which had not been made when the PSOE and PP communicated their agreement.

It was called almost a month later and Cardona, Adsuara and 12 other candidates attended.

They all went through a selection process and, in February, the Council of Ministers sent a list of three candidates to Congress that proposed a committee of experts for the position of president (which includes Cardona) and another for that of the deputy (which includes Adsuara ).

The resources presented by two of the candidates also included in the lists are directed against that agreement of the Council of Ministers.

One of the appellants, Ricard Martínez, professor of Constitutional Law at the University of Valencia, had asked the Supreme Court for a very precautionary suspension (urgently and without hearing the rest of the parties) of the process, but the court rejected it last Friday because there is no evidence that Congress is going to elect the new president “imminently”.

But the magistrates of the Fourth Section of the Contentious Chamber did agree to study the precautionary suspension requested by another of the candidates, Leonardo Cervera, director of the European Data Protection Supervisor, and that is what they have agreed this Monday after hearing the opinions of the State Attorney and the Prosecutor's Office,

The Supreme Court only had to rule now on the temporary paralysis of the process, but in the order written to present its decision, they leave clear signs that, at least their first impression, is that the Government has skipped the regulations, "from the moment in which that, strictly speaking, there is no such process, but mere appearance”.

The request for precautionary suspension has a “serious and worthwhile” basis because the procedure is “root flawed”, warns the room, which points out two alleged breaches.

The first, that the names of the future heads of the Agency were agreed upon by the Government and the PP a month before the selection process was called.

The second,

that the norm that regulates this appointment establishes that the Council of Ministers “must send the name of a candidate for each one of the two positions to Congress for its ratification, but not a short list in alphabetical order, as the Government sent.

“The consequence is that by departing from the procedure, altering it from the root, to the point of transforming the parliamentary ratification phase into another of election, it has acted as if the current regulations did not exist and that, moreover, it has proceeded in such a way that it could lend itself to giving formal coverage to a designation already made when the call was made, ”the magistrates point out.

To argue its decision to suspend the process now, without waiting for the sentence that will resolve the merits of the matter (whether or not the procedure initiated by the Government is legal), the Supreme Court maintains that “the reputational damage to the AEPD, within Spain and before the European Union, it would be greater if a ruling was issued declaring the nullity of the election procedure, with the consequent cessation of positions that are irremovable”.