Compromise on Amendment 138. Telecom Package finalised
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Deutsch: [Kompromiss hinsichtlich Zusatz 138. Telekom-Paket zum Abschluss gebracht | http://www.unwatched.org/node/1565]
The European Parliament (EP) and the Council were set in reaching an agreement when they started the negotiation activities on 4 November 2009 at 7 PM. After hot debates, an agreement was reached on the 5 November, a little while after 00:30.
The adopted text on the Amendment 138 topic, now point 3a of article 1 is, according with our sources in Brussels, this one:
3a. Measures taken by Member States regarding end-users’ access to or use of services and applications through electronic communications networks shall respect the fundamental rights and freedoms of natural persons, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and general principles of Community law.
Any of these measures regarding end-users’ access to or use of service and applications through electronic communications networks liable to restrict those fundamental rights or freedoms may only be imposed if they are appropriate, proportionate and necessary within a democratic society, and their implementation shall be subject to adequate procedural safeguards in conformity with the European Convention for the Protection of Human Rights and Fundamental Freedoms and with general principles of Community law, including effective judicial protection and due process. Accordingly, these measures may only be taken with due respect for the principle of presumption of innocence and the right to privacy. A prior fair and impartial procedure shall be guaranteed, including the right to be heard of the person of persons concerned, subject to the need for appropriate conditions and procedural arrangements in duly substantiated cases of urgency in conformity with European Convention for the Protection of Human Rights and Fundamental Freedoms. The right to an effective and timely judicial review shall be guaranteed.
It was clear that the original Amendment 138 has no chance, when the EP’s delegation went into the negotiations with a slightly changed text of the Council’s last proposal from 28 October 2009. The new text explained the measures “Any of these measures regarding end-user’s access to or use of services and applications through electronic communications networks”.
The key text from the original Amendment 138 “without a prior ruling by the judicial authorities” was turned by the EP delegation into the “shall respect the requirements of a prior fair and impartial procedure including the right to be heard of the person or persons concerned and the right to an effective and timely judicial review.”
The last paragraph from the Council’s proposal was also deleted. (This shall not affect the competence of a Member State, in conformity with its own constitutional order and with fundamental rights, to establish, inter alia, a requirement of a judicial decision authorising the measures to be taken.)
Thus at least two of the concerns of the Internet users did not make it to the final text, if our sources are correct. The text doesn’t concern private actors restrictions, thus allowing ISPs to be dragged in “voluntary agreements” with the recording industry.
Moreover the text does not guarantee explicitely “the prior judicial review”, thus leaving alone the Three Strikes Law in France and an open door for other 3 strikes measures in other countries. It would have been extremely nice to see the initial wording in the final text, especially after the recent updates on ACTA (see ENDitorial: ACTA revealed, European ISPs might have a big problem).
Telecom conciliation: Parliament’s new proposal (4.11.2009)
Telecom package meetings on Wednesday (2.11.2009)
An evolution of “amendment 138”
http://www.laquadrature.net/en/an-evolution-of-amendment-138
EDRi-gram: EDRI Open Letter to the EP on Amendment 138 (21.10.2009)
http://www.edri.org/edrigram/number7.20/edri-open-letter-amendment-138