Political agreements to appoint members of constitutional bodies sometimes encounter problems that can hardly be ignored. Such is the case of the election of the presidency (and the deputy to the presidency) of the powerful Spanish Agency for Data Protection (AEPD)
Political agreements to appoint members of constitutional bodies sometimes encounter problems that can hardly be ignored. Such is the case of the election of the presidency (and the deputy to the presidency) of the powerful Spanish Agency for Data Protection (AEPD), whose selection is complex, transparent and public, and is included in the Organic Law on the Protection of Personal Data and The Guarantee of Digital Rights that, remember, both PSOE and PP voted enthusiastically.
A few days ago we knew that the parties in the Government -PSOE and Unidas Podemos- presented Belén Cardona as ‘their’ candidate for the Presidency, the PP did the same with Borja Adsuara to occupy the position of deputy to the Presidency.
But with the subsequent announcement of the current director of the European data protection supervisor (EDPS), Leonardo Cervera Navas, to announce his candidacy, the election was complicated. And he wasn’t going to be the only one to show up.
In the end there have been no less than eleven candidates who have applied for both positions. The provisional list of the Ministry of Justice lists five as admitted candidates and another six as «provisionally excluded candidates awaiting correction», that is, they lack documentation. It is striking at this point that one of the «provisionally excluded» is Adsuara, the candidate promoted by the PP, but has a period of documentary correction that lasts until next Thursday.
A complex procedure
The election of the Presidency and its Adjunct is included both in the Organic Law on Data Protection (Article 48) and in the statutes of the agency itself (Royal Decree 389/2021, of June 1, which approves the Statute of the Spanish Agency for Data Protection, articles 12 and 16).
It is important to go to the normative texts to be able to understand the complexity of this choice with respect to the previous method –the director was proposed by the Government directly– and the paradox that it is necessary, in any case, an agreement between the two major national parties.
In the Organic Law, article 48, it says that the following: «The Presidency of the Spanish Agency for Data Protection and its Deputy will be appointed by the Government, at the proposal of the Ministry of Justice, among persons of recognized professional competence, in particular in matters of data protection. Two months before the expiration of the mandate or, in the rest of the causes of cessation, when this has occurred, the Ministry of Justice will order the publication in the Official State Gazette of the public call for candidates».
That was what happened a month ago, with the publication in the BOE of Order JUS/1260/2021, of November 17. Two days later, the deadline to aspire to the two highest positions of the Agency opened. Justice has to choose the candidates «after evaluating the merit, capacity, competence and suitability» of them.
Then, the Government «will send to the Congress of Deputies a proposal for the Presidency and Deputy accompanied by a justifying report that, after the holding of the mandatory hearing of the candidates, must be ratified by the Justice Commission in a public vote by a three-fifths majority of its members in the first vote.» The rule says that, if that proportion of votes were not reached, there would be a second vote in which an absolute majority (half the votes plus one) would necessarily be enough from «two different parliamentary groups».
That is, despite the baroque of the procedure, ultimately it remains a matter on which PSOE and PP must agree: the pact is necessary. And although some candidacies, such as that of Leonardo Cervera, affect his «independence», the truth is that it is the parliamentary groups that have to choose the position. Before, the power was of the Government; now, a consensus is essential.
E-government?
One of the problems that some of the candidates have encountered has been the limitation of the platform enabled by the Ministry of Justice to be able to electronically present the candidacies for the Presidency of the AEPD and its Adjunct, something paradoxical if we take into account the eminently digital nature of the work of the Agency.
The system through the ‘ad hoc’ form does not allow to ‘upload’ more than four documents of two megabytes each, something ridiculous if it is necessary to take into account that the candidates have to demonstrate their competency requirements and «professional and training merits that they consider more relevant in their professional experience (such as, activities and jobs performed in the sector, as well as publications, participation as a teacher in courses or panels, etc.), in particular referring to data protection, transparency, as well as knowledge of languages».
Likewise, the curriculum vitae sent must be in Europass format, «in which the fulfillment of the requirements demanded in this call and the merits that you wish to allege are accredited».
Some of the candidates have been able to provide the required documentation in time and on time through the use of email (to attach, for example, their certifications), while others confirm to Público that this route has not served them and have chosen to send such paper documentation and by postal mail.
For some time now, the lack of preparation of the Public Administration in terms of its digitalization has been a cry, especially in what corresponds to the Ministry of Justice. For example, its Lexnet notification system is a real disaster in the opinion of many jurists who are forced to suffer it on a daily basis. But that’s another story.
Candidates
Belén Cardona (Presidency): Professor of Labor Law at the University of Valencia, she is currently Undersecretary of the Ministry of Justice, Interior and Public Administration of the Generalitat. He has extensive experience in the management of research projects and framework cooperation agreements with Brazil, Chile and Ecuador, on human rights, development and citizenship, equality, migration policies, reports Valencia Plaza
Leonardo Cervera (Chair): Spanish jurist specialized in European Union law. In 1999, after passing the opposition of administrator of the European Union, he moved to Brussels and during the first decade of the century worked on data protection and intellectual property issues at the European Commission. Since 2010 he has been working as Director of the European Data Protection Supervisor.
Jose Ignacio González (Presidency and Adjunct): is a lawyer and joint data protection delegate in the Parliament of Andalusia and in the Andalusian Ombudsman.
Pilar Aránzazu Herráez López (Adjunct): She is a career official of the City of Leganés, and since 2019 Delegate of Data Protection of the City of Getafe (Madrid).
Ricard Josep Martínez Martínez (Chair): Professor in the Department of Constitutional Law, Political Science and Administration and is Director of the Chair of Privacy and Digital Transformation. PhD in Law from the University of Valencia. He has collaborated with different universities as a teacher in undergraduate or postgraduate studies and has been responsible for the Study Area of the Spanish Agency for Data Protection.
Borja Adsuara Varela (Adjunct): Doctor of Philosophy of Law and professor, he has participated as an expert in privacy and data protection since 1992 in the elaboration of all Spanish laws related to data protection, telecommunications and digital law. He was director of Red.es and the Observatory of Telecommunications and Information Society, among other public positions.
Cristina Blasi Casagran (Presidency and Adjunct): Adjunct Professor at the Universitat Autònoma de Barcelona, she completed her doctorate in Law at the European University Institute (Florence, 2015), where she specialized in EU legislation on privacy and data protection.
Emilio del Val Puerto (Adjunct): Official of the Higher Body of Traffic Technicians, he was deputy director general of inspection of the Data Protection Agency of the Community of Madrid (APDCM).
Silvia Esteve Ujeda (Presidency and Adjunct): She is a lawyer and practices in Alcoi (Valencian Country).
Ana Maria Marzo Portera (Presidency and Adjunct): Partner of Equipo Marzo (Burjassot, València), she is a lawyer specialized in data protection, electronic commerce and information security, among other fields.
Javier Aparicio Salom (Chair): He is a university professor and State lawyer on leave with extensive experience in data protection, the Internet and new technologies, both in the contentious field and in advice. He was director of the legal department of the Spanish Agency for Data Protection.
President and his deputy
The president of the AEPD is considered a high official, with the rank of Undersecretary, while the person holding the Adjunct to the Presidency will be considered a high position, with the rank of Director General. The requirements to be a candidate for either position are, however, the same. For that reason there are candidates who are running indistinctly for any of these positions. Apart from the category, the difference between the functions of one and the other is that the Deputy cannot initiate sanctioning procedures in case of possible violation of the data protection regulations, as indicated in article 17 of the Statute of the Spanish Agency for Data Protection.
