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European Parliament committee chair tries to reach a "deal" with the Council on the surveillance of communications

01 May 2002

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.

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 po