The Draghi Dilemma: The Right and the Wrong Way to Undertake GDPR Reform

The following is a guest post to the FPF blog authored by Christopher Kuner, Visiting Fellow at the European Centre on Privacy and Cybersecurity at Maastricht University and FPF Senior Fellow. The guest post reflects the opinion of the author only and does not necessarily reflect the position or views of FPF and our stakeholder communities. FPF provides this platform to foster diverse perspectives and informed discussion.

There has been much interest in the report on European competitiveness issued in September 2024 by former Italian Prime Minister and European Central Bank President Mario Draghi at the request of European Commission President Ursula von der Leyen, which calls for reform of the EU General Data Protection Regulation (“GDPR”). Draghi’s views have led to discussion about whether fundamental changes to the GDPR are needed, particularly to improve the EU’s position as a global leader in artificial intelligence (AI). In order to protect fundamental rights, maintain legal certainty, and continue to ensure a high level of protection, any reform should be evidence-based, targeted, transparent, and further the EU’s values.

Draghi’s criticisms

In his report, Draghi makes valid criticisms of the inconsistent and fragmented implementation of the GDPR in the Member States (see p. 69). However, his more recent remarks have been more pointed. In a speech at a high-level Commission conference on 16 September 2025, Draghi not only denounced “heavy gold-plating” by Member States in GDPR implementation, but also called for a “radical simplification” of “the primary law” of the GDPR (p. 4). Under Article 97 GDPR, the Commission must prepare an evaluation of it every four years. Its last evaluation, issued in 2024, identified several challenges to the effective operation of the GDPR, but did not call for large-scale reform.

Under pressure following Draghi’s report, the Commission proposed without any consultation a “GDPR Omnibus” on 21 May 2025 containing targeted amendments that eliminate record-keeping requirements for some categories of smaller data controllers. The Commission’s proposal was accompanied by sensationalist claims in the press (such as that the GDPR is on an EU “hit list” and will be consumed in a “red tape bonfire”) and incoherent political statements (such as claims by the Danish Digital Minister that there are “a lot of good things about the GDPR” but that it regulates “in a stupid way”), which seemed to raise the political temperature and push onto the public agenda the idea of radical change of the GDPR. 

Later this year the Commission is set to announce a “Digital Omnibus” with proposals for simplification of its data legislation “to quickly reduce the burden on businesses”. It seems possible that political pressure in the EU as well as criticism from the Trump Administration could lead to further proposals for GDPR reform as well.

The politics of reform

Despite Draghi’s claims (see p. 4 of his speech), so far there has been no widespread public pressure for “radical simplification” of the GDPR. The participants at a Commission Implementation Dialogue on application of the GDPR held on 16 July 2025, which included stakeholders from business, civil society, and academia (including myself), concluded that there should be no major changes to the GDPR, while identifying some targeted reforms that could be considered. Anyone who has been involved in EU data protection law for the past few decades can remember claims similar to Draghi’s going back to the entry into force of the EU Data Protection Directive 95/46/EC in the 1990s that data protection law throttles economic growth, all of which have proved to be hyperbolic.

Thus far, GDPR reform has been dealt with on the technocratic level, and the Commission has demonstrated no desire to open up discussion about it to a wider audience. For example, its call for evidence with regard to the Digital Omnibus proposal expected later this year does not mention the GDPR, suggesting that any further proposals for its reform may be announced without public consultation. The text of the GDPR is finely-balanced, and changes to one provision that on the surface seem minor may create uncertainties or conflicts with other provisions, unless they are carefully considered. Pushing through reforms hastily can lead to unintended consequences that exacerbate existing problems and increase public cynicism of the EU legislative process.

Efficiency vs. values

One would expect that an experienced European leader and outstanding public servant such as Draghi would mention that the GDPR protects fundamental rights set out in the TFEU and the EU Charter of Fundamental Rights. However, he has not done this, while giving the impression that the GDPR is little more than red tape that the EU can change at will. His call for simplification of the “primary law” of the GDPR seems to advocate changes to its fundamental principles, but this could bring any reform into conflict with the TFEU and the Charter and lead to challenges before the Court of Justice.

In his report and speech, Draghi fails to buttress his criticism with any European scholarship on the GDPR, and refers only to a study published by the National Bureau of Economic Research (NBER), a US-based economic research organisation, concluding that the GDPR creates economic inefficiencies (see p. 4, footnote 6 of his speech). This conclusion is not a surprise, since, like other forms of regulation designed to protect fundamental rights and human dignity, economic efficiency is not one of the GDPR’s primary goals. Draghi thus fails to recognise, as Leff argued in his famous review of Posner’s Economic Analysis of Law, that it is useless to evaluate activities using criteria of economic efficiency when they pursue other overriding values that go beyond economics. 

The place of data protection in the EU legal order has been better recognised by President of the Court of Justice Koen Lenaerts, who stated concerning EU data protection law in an interview in 2015 (paywall) that “Europe must not be ashamed of its basic principles: The rule of law is not up for sale. It is a matter of upholding the requirements in the European Union, of the rule of law, of fundamental rights”. The enthusiastic reception of Draghi’s pronouncements by EU leaders (see, for example, the lavish praise of von der Leyen) seems to indicate that not all European politicians share this view.

The right way to undertake GDPR reform

No legislation is perfect, and discussion of whether the GDPR could be improved should not be taboo. However, any reform must recognise the status of data protection as a fundamental right in the EU legal order; failing to do so would create legal uncertainty for companies and undermine the trust of individuals and thus be counterproductive. Von der Leyen herself recognised the importance of data protection in furthering the data economy in her speech at the World Economic Forum on 22 January 2020, where she called it “the pillar” of the EU’s data strategy, and stated that “with the General Data Protection Regulation we set the pattern for the world”. If the EU wants the GDPR to continue to be a model that other legal systems strive to emulate, then it must ensure that any reform is based on the following principles.

Decisions about reform of the GDPR should be subject to an evidence-based assessment grounded on criteria such as effectiveness, efficiency, relevancy, and coherency as set out in the Commission’s Better Regulation Guidelines. This should include consultations with stakeholders, thorough review of research on the GDPR (in particular that conducted by European scholars), and public hearings or conferences. It must clearly articulate its goals and proceed where the evidence leads it, and not rely on anecdotes or political pronouncements. 

If further reform is found necessary, it should be targeted at a few specific areas, and not open the GDPR to wide-ranging changes. Draghi makes some valid points by criticising the current situation as not meeting the objectives of the GDPR to eliminate barriers to economic activities between the Member States (GDPR Recital 9) and to create legal certainty for economic operators (Recital 17). As he argues, there is too much fragmentation in the implementation of the GDPR in the Member States. However, reform should focus not only on the need to remove burdens on business but also on making the GDPR work better for individuals, which Draghi does not mention at all.

The EU institutions, with input from the European Data Protection Board, should agree on a limited number of clearly-defined priorities to be dealt with in any reform. Any changes that affect the fundamental principles of the GDPR or reduce the level of protection should be off-limits. It should be remembered that the original passage of the GDPR resulted in thousands of amendments in the European Parliament and took several years, so that any radical reform would take so much time that it would fail to attain the goal of rapidly improving EU competitiveness. Thoughtful suggestions for targeted reform of the GDPR have already been made by Padova and Thess (my colleagues, in the interest of full disclosure!) and by Voss and Schrems.

It must be conducted transparently in order to ensure legitimacy. Only an open and transparent evaluation of the GDPR can maintain the trust of citizens, ensure a high level of data protection, and advance European competitiveness. There should not be a repetition of the procedure used to rush through the Commission’s amendments to the GDPR proposed in May 2025. 

Finally, reform must further the EU’s values. As Article 2 and 3(1) TEU set out, the EU was founded on values such as “human dignity, freedom, democracy, equality, the rule of law and respect for human rights”, which are also at the heart of the GDPR (see Recital 4). Any reform must respect these values and ensure that the protection the GDPR provides is not reduced. Improvement of competitiveness is an important goal, particularly in light of the many geopolitical challenges the EU faces, but cannot override the values set out in the EU constitutional treaties.

GDPR reform should not be a “Brussels bubble” exercise conducted at a technocratic level. Only an open and transparent process allowing for input by citizens and other relevant stakeholders can ensure a result that is in line with the EU’s values and protects the fundamental rights of individuals, while making a contribution to improving the EU’s competitiveness.