Council of the European Union
Brussels, 31 May 2001
from: General Secretariat
previous document: 9337/01 ECO 146 CODEC 491
Commission proposal: 10961/00 ECO 242 CODEC 616
Subject: PREPARATION OF COUNCIL SESSION TRANSPORTS/TELECOMMUNICATIONS ON 27/28 JUNE 2001 European Parliament and Council proposal for a directive concerning the treatment of personal data and the protection of privacy in the field of electronic communications
In July 2000 the Commission adopted a collection of proposals relating to a regulatory framework for the infrastructures of electronic communications and related services. The scope is to adapt present community legislation to the profound changes which have taken place in the sectors of telecommunications, media and information technology.
The directive proposal relating to the treatment of personal data and the protection of privacy is one of these proposals. The intention of the Commission is not to introduce profound changes to the content of the existing directive (97/66/CE) but simply to adapt and update its provisions to take into account of recent and foreseeable developments, by establishing rules which may be technologically neutral and maintain a high level of protection for personal data and the privacy of citizens.
The European parliament's opinion is expected in the month of Septemeber 2001 and that of the Economic and Social Committee was given on 24 January 2001. The Regions Committee has informed the Commission that it had no intention of providing an opinion on this proposal.
II. Results of the work
Following the agreement reached in the "Transport/Telecommunications" Council on 4 April 2001 on three other directives of the legislative package, the Telecommunications group started its scrutiny of this proposal on which some rapid progress was achieved.
In fact, at the close of its meeting of the past 29 May, the group agreed to submit to Coreper the draft directive featured as an annex to document 9337/01, on which only a small number of questions are left to be resolved. These questions are exposed below in part III of this report.
It must be noted that at this point in the work, the F delegation holds a general scrutiny reservation on the draft directive and the ES and P delegations hold a general reservation of a linguistic kind. The DK, F and UK delegations, for their part have introduced a parliamentary scrutiny reservation.
1. Erasure of traffic data (article 6, paragraph 1)
Putting into practice certain principles of the general directive 95/46/CE on the protection of personal data, the Commission proposal provides in paragraph 1 that, following the example of the directive in force, traffic data concerning subscribers and users must be erased or made anonymous on completion of the transmission, except for those which are required for billing purposes. Moreover, on the basis of the subscriber's consent, a possibility of dispensation is envisaged for the marketing of the communications provider's e-commerce services, to which the Commission proposes to add a dispensation for the provision of value-added services.
Three delegations (B, S, UK) have placed a reservation on the Commission proposal by requesting the abandonment in paragraph 1 of the principle of erasure [of data] or of making it anonymous. These delegations in fact deem that this principle does not take into account the needs of repressive authorities and that it does not respond to the technical requirements for new forms of communication using Internet networks and technology.
It has not been possible to find a solution within the group on the basis of any of the amendment suggestions presented by the B and S delegations, particularly if one takes into account the refusal by certain delegations (GR, I, NL) and by the Commission to see the text of the present directive changed on this point. The latter underline the importance and sensitivity of this issue which affects human rights and fundamental rights. The Commission has moreover drawn the group's attention to two new preambles which in its opinion clarify the technical aspects raised by the S delegation (doc 9337/01, foot-note 10, p.5 and foot-note 13, p.7)
In the light of the debate, the Presidency agrees to submit to Coreper, by way of compromise, the latest Swedish delegation proposal repeated below, which it has considered to be the best to enable points of view to move closer.
article 6, paragraph 1
"Traffic data concerning subscribers and users processed and stored by the provider of a service or a public communications service provider must be erased or made anonymous when it is no longer needed for the scope of the transmission, without prejudice to measures in paragraphs 2 and 3 and of article 15, paragraph 1."
"The obligation to erase or render anonymous traffic data when it is no longer needed for the scope of transmitting a communication is not in contradiction with procedures used on the Internet, such as the previous reading* in a rapid "caching" mechanism* in the system of domain names, IP addresses or the previous reading in a rapid *mechanism (support) of an IP address linked to a physical address or the use of information concerning the user to control the right of access to some networks or services.
The GR and I delegations and the Commission have indicated that they could not back this proposal taking into account the effects of the drafting amendment proposed to paragraph 1 as well as the reference to article 15. At this stage, the other delegations hold a scrutiny reservation on this question, be it because they seek internal consultation in their capital (country) or be it, for some of them ( A, FIN, P, UK), because of their preference for certain amendment proposals presented previously. The B delegation for its part wishes to maintain its own proposal (doc 9337/01/01).
2. Limitation of rights and obligations (article 15, paragraph 1)
The Commission proposes to reconduct* the provisions towards* their principle by providing for, on one hand, the exclusion in article 1, paragraph 3 of activities which do not follow from community law and on the other hand for the possibility for Member States to limit the scope for some provisions in the directive on the basis of article 15 paragraph 1 insofar as this is necessary to safeguard certain public interests, particularly public security and the pursuit of criminal offences. It is a matter of applying a wider provision which is found in article 13, paragraph 1 of general directive 95/46/CE. It must be noted that article 6 relating to traffic data is one of the provisions whih could be subject to such limitations.
The UK delegation proposes to extend the range of public interests which can authorise such limitations by using the whole of the interests provided for in the general directive again, and by adding public health.
The ES and F delegations introduced a scrutiny reservation on this amendment proposal, the ES delegation having expressed an explicit attitude with regards the addition of a reference to an important economic or financial interest of a member State or the EU.
The Commission, supported by the I delegation, has opposed the proposed change by underlining that the general directive was aimed at covering the totality of economic sectors while the directive in question, which affects issues as sensitive as the secretness* of communications, should remain more restrictive on this point.
3. Directories of subscribers (articles 12 and 16)
According to the present directive, subscribers are included in the directory as a matter of course for some data which is strictly necessary for their identification while it is understood that they can request, free of charge, (subject to the reservation of certain possibilities of dispensation at a national level) not to be included, to exclude certain of their data or to restrict its use. In the light of the practice which has developed for the new communication services (GSM, electronic mail), the Commission proposes that the subscriber may be able to choose whether or not to figure in a public directory, to choose the data that will be included and to be informed in a complete manner on the possible uses of the register. Furthermore, Article 16 provides for some transitory measures to cover the editions of registers published before the new directive comes into force in the member States.
In order to move towards meeting certain concerns expressed during the work, a new paragraph 2bis has been added to article 12 so as to specify that a further consent must be obtained from the subscriber before putting into practice possibilities of usage other than the simple search of telephone numbers by name. Moreover a new preamble has been drawn up to specify the legal position of data collected when it is the object of a transmission. Finally, being transitory provisions, the text of article 16 has been clarified in paragraph 1 and a new paragraph 2 has been added to introduce a certain flexibility with regards the updating of databases collected on the basis of present legislation.
The present text has received a large support within the group notwithstanding the following scrutiny reservations:
- The F delegation holds a scrutiny reservation on paragraphs 1 and 2 of article 12, deeming that the new provisions could favour historical* operators. It also has a preference for legislation to state, as it presently does, the list of data which can figure in a directory. The FIN delegation also holds a reservation on this article in relation to article 16;
- with regards to the new paragraph 2bis, the DK and IR delegations hold a scrutiny reservation and the B and F delegations hold a reservation of a linguistic kind, particularly on the words "communication details of persons";
- finally, three delegations hold a scrutiny reservation on the new drafting of article 16, respectively on the whole of the article (FIN), paragraph 1 (P) and paragraph 2 (IRL).