Data retention in JHA Council

By EDRi · June 2, 2005

Tomorrow 3 June at 13.00 PM the ministers of Justice and Home Affairs (JHA Council) will give a press conference about their achievements with regards to the introduction of mandatory data retention, item B5 on the agenda. On 7 June 2005 the European Parliament will vote in plenary on the report from Alexander Alvaro. The report finds the proposal disproportionate and ineffective and not in compliance with the fundamental principle of the presumption of
innocence. It is widely expected that the report will be adopted with a large majority, thus sending a clear signal to Council and Commission that the Parliament is angry about its advisory role and wishes a much stronger public debate about the need, necessity and costs of data retention. On 26 May 2005 the Europarl LIBE commission already adopted this report almost unanimously, with only 1 vote against.

The results of the JHA Council will be closely monitored in the Netherlands, since both chambers of the Dutch parliament have explicitly forbidden Justice minister Donner to take part in any agreement on the issue. Tuesday 31 May 2005 the Senate sent a message forbidding the minister to take part in any debate about data retention until he meets the Senate again on 21 June, today the Lower House adopted a similar motion calling on the government not take part in any deliberations until the results of the first (!) research in Europe into the need and necessity of mandatory data retention have been published and discussed in parliament.

This research was commissioned by Donner in February 2005 from the Erasmus University in Rotterdam. The results are expected to surface in the meeting with the Senate on 21 June 2005. Meanwhile, the JHA council is wrestling with the deadline it set itself in March 2004, to reach agreement on a framework decision by June 2005. This deadline might explain why the Council has ignored the serious allegations that the draft framework decision lacks a legal basis. Both the legal service of the JHA Council, as well as the European Commission and the Europarl legal commission have stated that this decision belongs in a proper democratic procedure, initiated by the Commission and with full co-decision rights for the European Parliament. Since the proposal has such an enormous impact on the privacy of all EU citizens and causes such unforeseeable costs and effects on the competition between the EU and the rest of the world, the decision clearly belongs in the first pillar.

But the working groups of the JHA Council have not stopped producing proposals about the kind of data. In the last public document the Presidency suggests that the Council could agree today on a minimum term of at least 12 months and agree on the scope (any kind of criminal offence) and exchange of data amongst member states.

The European Commission is now ready to finally launch its own directive proposal, according to comments made by the EU Commissioner for Justice Frattini and the EU Commissioner for Information Society and Media Reding. In an interview with EUPolitix Frattini announced he would launch the proposal ‘within very few weeks’, but also said he would give the JHA Council brief information today or tomorrow.

The suspense could not be higher, since Reding stresses the need for proportionality and warns “the step could spark a clash with member states” while Frattini seems convinced that Commission and Council agree on the substance and a compromise can be worked out. “There will be, in other words, a possible proposal on the substance by correcting the legal basis”, he said. Reding on the other hand added the promise that the Commission will request an impact analysis of the legislation to make sure it is proportionate.

Live broadcast of press conference JHA Council (03.06.2005, 13:00 PM) Interview with EU Commissioner for justice Frattini (31.05.2005)

EU Commission says to propose phone data logging (31.05.2005)

European Parliament procedure and timetable on data retention (ongoing)

Alvaro report (18.04.2005)