Commission opposes framework decision on data retention

The European Commission has made it clear to all the Ministers of Justice and Home Affairs in the EU that there is no legal basis for a framework decision on mandatory data retention in the third pillar. The draft framework decision on data retention was introduced in April 2004 by the governments of France, the UK, Ireland and Sweden in an attempt to bypass the Commission, the European Parliament and even national parliaments. In the third pillar, the ministers may agree unanimously on a decision to harmonise legislation on police and justice matters, without any co-decision right for the European Parliament and a very limited margin for national parliaments to amend such a decision. In the proposal for data retention this margin is clearly defined. National parliaments may choose a different timeframe for the retention, but only if they review their decision annually and report to the Commission why they are still differing.

According to an update about developments in the JHA Council given to the Dutch Parliament, the Commission wants to initiate a proper first pillar legal initiative, with full co-decision rights for the European Parliament. In a letter from 15 February to the Lower House and the Senate the Dutch Minister of Justice Piet Hein Donner mentions this radical development as a matter of fact, but doesn’t seem to draw any conclusions as to the legitimacy of the project.

Answering critical questions from MPs minister Donner provides an overview of current data retention legislation in the EU. Close reading shows there is not a single country in the EU with mandatory data retention for internet providers. Some countries do have framework legislation under which specific data retention decrees can be made, but in no country except for Italy has such a decree entered into force. In Italy telephony providers are obliged to store traffic data for a period of two years. In Ireland a secret decree was issued in 2002 demanding 3 year storage of traffic data. When the data protection commissioner found out about the decree in 2003, a national scandal broke out and the Department of Justice promised to organise a consultation and to introduce proper legislation. The consultation took place in the summer of 2004 but up to day the Irish Parliament has not been presented with a proper legal proposal.

In an earlier meeting from the EP Committee on Civil Liberties, Justice and Home Affairs (LIBE) a representative from the Commission already gave some support to the claim from the rapporteur, Alexander Alvaro, that the immense costs for the industry deserved a proper first pillar treatment (See EDRI-gram 3.3). No official statement from the Commission has surfaced yet. Behind closed doors the European Justice Commissioner Franco Frattini seems to prepare for a frontal collision with the JHA Council.

Letter to the Dutch Parliament (in Dutch, 14.02.2005)
http://www.justitie.nl/pers/kamerstukken/include.asp?bestand=/extern/documentportal/Brieven%20TK/20050214_5334011a%20%20telecommunicatiegegevens.doc.c