Surveillance of telecommunications in the EU
Narrow vote in European Parliament on data retention



There was a narrow vote in the European Parliament yesterday (18.4.02) on the retention of telecommunications data - in the Committee on Citizens Freedoms and Rights the vote was 25 to 19 in favour of opposing the Council of the European Union (the 15 EU governments) proposal. The final vote on the parliament's second reading position will take place at the plenary session on 15 May when, under the rules, the maintenance of this position requires 314 votes in favour. See Statewatch reports: Background

The Committee was voting on its 2nd reading report on the proposal to amend the 1997 EU Directive on privacy in telecommunications. The original proposal from the European Commission simply put forward a number of updating changes but the Council - backing the demands of the law enforcement agencies (police, customs, immigration and internal security agencies) - agreed a "common position" allowing data retention. In the wake of 11 September the European Commission abandoned its opposition in December - despite the clearly stated views of the EU Data Protection Commissioners.

On Tuesday 16 April there was an informal "trilogue" meeting (secret meetings of the Council, Commission and parliamentary rapporteurs used by the Council to achieve its objectives). But the day before the Rapporteur, a well-informed Brussels newsheet, reported that an amendment to the parliament's report tabled by Ana Palacio (conservative EPP group and chair of the Committee on Citizens Freedoms and rights) was commented on favourably by the coordinator of the EPP group in the Committee and by Michael Cashman (UK, Labour, PSE group). Despite the convention that amendments to Commission proposals agreed unanimously by the parliament at its first reading should not be amended again - Palacio, a Spanish conservative MEP and chair of the Committee put forward an amendment accepting the Council's position. In doing so Ana Palacio was trying to give direct support to the increasingly rightwing Spanish Presidency of the EU.

The vote in the Committee took place on an amendment to the Council's "common position" put forward by the rapporteur Marco Cappato (Radical Party, Italy) to maintain the parliament's first reading position. As this was passed the Palacio amendment fell. The 25-19 vote showed the PSE (social democratic Socialist group), the GUE (United Left), the Green/EFA group and the ELDR (Liberal group) against data retention and the EPP (conservative group), UEN (Europe of Nations group) and EDD (Europe of Democracies and Diversities group) in favour of data retention. The report will now go the parliament's plenary session on 15 May where it needs to get 314 votes (out of a total of 626 MEPs) to be adopted as the 2nd reading position. It is expected that the EPP (the largest party with 233 MEPs) will again attempt to introduce an amendment to the critical Article 15.1 and there is no certainty that a majority can be put together to oppose data retention. The combined voting strength of the PSE, ELDR, Green/EFA and GUE is 321 - but this assumes that none of the PSE MEPs break ranks under pressure from their governments.

The amendments

The Council's common position on data retention in Article 15.1 reads as follows:

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.

The EPP/Ana Palacio amendment to the above read as follows:

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.

The Amendment by Marco Cappato (rapporteur) to maintain the 1st reading position read as follows:

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.

Comment: the Council's position is intended to deflect criticism by arguing that the proposal is non-binding and therefore up to each member state to enact. This ignores the evidence on the record that the Council's plans assume that every EU state allows the retention of data and allows access to this for the "law enforcement agencies".

For more background please see: S.O.S.Europe
Story filed 19.4.02



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