Rapporteur demands co-decision data retention

By EDRi · February 9, 2005

The rapporteur from the European Parliament on telecommunication data retention, Alexander Alvaro, has presented his first views on the draft framework decision in a turbulent meeting from the Committee on Civil Liberties, Justice and Home Affairs (LIBE). Alvaro proposed on 1 February 2005 to split the proposal in two, and give the European Parliament full co-decision power on the decision where it affects the internal market, on the costs and the exact list of data. Currently, the European Parliament only has a ‘consultation’ right on this issue. It cannot veto or amend the proposed decision, since it is considered third pillar legislation (police and judicial cooperation in criminal matters). Only the ministers from the EU member states can decide about these matters, if they reach unanimity. Alvaro doubts whether the proposal can ever meet the demands of proportionality when it comes to the Internet. He finds the proposal lacks proportionality, is in possible violation of the assumption of innocence, and contrary to the spirit of Article 15 of the E-Privacy Directive of 2002, which only allows for specific and temporary legal measures by member states, not for a harmonising decision. Concluding, he demanded a maximum term of 6 months, a limitation to data already processed by companies for business purposes and rules for general cost reimbursement.

The representative from the European Commission expressed some doubts about the legal basis and underlined the high cost for firms. In the following exchange of views a vast majority of LIBE-members agreed the initiative from the Council should be withdrawn and that instead the Commission should come up with a proposal, giving the desired co-decision to Parliament.

Edith Mastenbroek (PES/NL) agreed with Alvaro in her speech. She demanded proof of the proportionality of the proposal to store data about the communication data of all Europeans for a period of 1 to 3 years. She also raised the issue of inherent new security risks by creating giant databases with sensitive personal information.

Mastenbroek’s earlier questions to the Council about proportionality and democratic content of the procedure are still unanswered. Amongst others, she wanted to know how democratic it is to force member states to review any derogation from the minimum list of data annually. The Council register shows two recent documents relating to a possible answer to these questions, both not publicly available, one a ‘preliminary draft reply’ and the other one ‘a corrigendum to the preliminary draft reply’, both addressed from the Council to the permanent representatives of the Member States (Coreper). Earlier ‘draft replies’ from the Council, dating back to 28 October and 18 November 2004 have not become public either.

On 3 February 2005, the legal affairs committee of the European Parliament (JURI) decided to ask the Parliament’s legal service for advice on the co-decision powers of the Parliament in this matter. The European Parliament is scheduled to vote on the report in June 2005, after formal adoptation by the LIBE committee, scheduled for the session of 25 and 26 April. LIBE will have a formal discussion on the report on 30 and 31 March 2005.

Draft working document Alexander Alvaro (full version in German, 31.01.2005)

Oral question Edith Mastenbroek to the Council (28.10.2004)

Overview of Council documents relating to data retention