European Parliament committee chair tries to reach a "deal" with the
Council on the surveillance of communications
There were extraordinary moves last week involving the Council of the
European Union (the 15 EU governments) and the chair of the Committee on
Citizens' Freedoms and Rights, Ana Palacio (EPP, conservative group, Spain)
to reach a "deal" over the retention of telecommunications data for law
enforcement agencies use - a "deal" which would have seen the European
Parliament adopting as a negotiating position acceptable to the Council.
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The parliament's Committee on Citizens' Freedoms and Rights agreed its 2nd
reading position on the proposed revision of the 1997 Directive on 18
April. On the critical Article 15.1. the Committee voted 25 votes to 19 to
maintain its 1st reading position opposing the retention of communications
data (except in specific, authorised, investigations - as at present). The
EPP group (conservative) of which Ana Palacio, Spanish MEP and chair of the
Committee, is a member led the opposition to the majority view.
Following this vote the Spanish Presidency of the Council of the European
Union undertook:
"a number of informal contacts... [with] interested members of the European
Parliament with a view to exploring the possibilities for a pre-negotiated
agreement on a set of compromise amendments to be adopted at the plenary
vote, now scheduled for 30 May 2002"
On 3 May and Monday 13 May the Council's Telecommunications Working Party
examined "a number of compromise texts" including that for Article 15.1.
On Wednesday 15 May, a new amendment to Article 15.1. was circulated by Ana
Palacio, committee chair, which was to be presented to the Council on
behalf of the European Parliament as a "compromise" agreement - an
amendment which was virtually the same as the one rejected by the Committee
and which accepts the Council's demands for data retention. It was intended
that this amendment be sent to the Council for agreement by COREPER (the
permanent representatives of the 15 EU governments based in Brussels) -
however this formal approach was blocked by the parliament's negotiating
team when it learnt of the move.
However, the Spanish Presidency of the Council simply picked up the
amendment lodged in Ana Palacio's name (amendment no 31) and presented a
report addressed to COREPER dated 16 May (the next day) saying that it was:
"acceptable with small modification"
which is not at all surprising as it is has the same effect as the
Council's common position.
It also accepted with small modification another linked amendment (no 32)
lodged by Ana Palacio changing the "Recital" linked to Article 15.1. This
would:
"allow Member States to require the provider of a public communications
network or publicly available electronic communications service to retain
traffic and location data in accordance with the law"
The parliament's Committee's report proposed 23 amendments to the Council's
common position and further amendments, numbered 24 to 43 have been put
forward to be considered at the plenary session. Of the 23 amendments put
forward in the parliament's committee report only 2 minor changes are
accepted by the Council.
Tony Bunyan, Statewatch editor, comments:
"The vote in the European Parliament on 30 May will mark a defining moment
for the future of democracy in Europe. It is to be hoped that the
parliament will stand firm because if it does not it will mean an end to
privacy in communications.
It is quite extraordinary that the chair of the European Parliament
committee which is meant to defend the freedom and rights of citizens
appears to be actively working with EU governments to place everyone's
communications under surveillance - a practice that is rightly associated
with authoritarian regimes"
Article 15.1 - the different positions
1. The Amendment (rapporteur: Marco Cappato) agreed by the Committee on
Citizens's Freedoms and Rights on 18 April as its 2nd reading position,
maintaining the 1st reading position agreed in November 2001 (amending the
Council's common position under 4 below) reads as follows:
15.1. Member States may adopt legislative measures to restrict the scope of
the rights and obligations provided for in Article 5, Article 6, Article
8(1)(2)(3) and (4), and Article 9 of this Directive when such restriction
constitutes a necessary, appropriate, proportionate and temporary measure
within a democratic society to safeguard national security, defence, public
security, the prevention, investigation, detection and prosecution of
criminal offences or of unauthorised use of the electronic communication
system, as referred to in Article 13(1) of Directive 95/46/EC. These
measures shall be entirely exceptional and based on a specific law which is
comprehensible to the general public, and shall be authorised by the
judicial or other competent authorities on a case-by-case basis. Under the
European Convention on Human Rights and the EU Charter of Fundamental
Rights and pursuant to rulings issued by the European Court of Human
Rights, any form of widespread general or exploratory electronic
surveillance is prohibited.
2. The EPP/Ana Palacio amendment to the above on 18 April and rejected by
the Committee (amending the Council's common position under 4 below) reads
as follows:
15.1. Member States may adopt legislative measures to restrict the scope of
the rights and obligations provided for in Article 5, Article 6, Article
8(1)(2)(3) and (4), and Article 9 of this Directive when such restriction
constitutes a necessary measure to safeguard national security, (i.e. State
security) defence, public security or the prevention, investigation,
detection and prosecution of criminal offences or of unauthorised use of
the electronic communications system, as referred to in Article 13(1) of
Directive 95/46/EC. To this end Member States may inter alia provide for
the retention of data for a limited period justified on the grounds laid
down in this paragraph, in accordance with the general principles of
Community law, in particular the European Convention on Human Rights and
pursuant to rulings issued by the European Court of Human Rights.
3. The new Ana Palacio amendment put forward on 15 May "acceptable" to the
Council (amending the Council's common position under 4 below) reads as
follows:
15.1. Member States may adopt legislative measures to restrict the scope of
the rights and obligations provided for in Article 5, Article 6, Article
8(1)(2)(3) and (4), and Article 9 of this Directive when such restriction
constitutes a necessary, appropriate and proportionate measure within a
democratic society to safeguard national or State security, defence, public
security, the prevention, investigation, detection and prosecution of
criminal offences or of unauthorised use of the electronic communication
system, as referred to in Article 13(1) of Directive 95/46/EC. To this end
Member States may inter alia adopt legislative measures providing for the
retention of data for a limited period justified on the grounds laid down
in this paragraph. All the measures included in this article shall be in
accordance with the general principles of Community law including those
referred to in Article 6 paragraphs 1 and 2 of the Treaty on European Union.
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