Secret minutes EU data retention meeting

By EDRi · April 6, 2005

EDRI-gram has obtained 2 secret documents about the draft framework
decision on data retention that unveil the positions of individual Member
States when it comes to the scope, cost, scale and length of retention.
The first document, published on the EDRI website, is the uncensored
version of the latest draft framework decision from 24 February 2005, from
the Working Party on cooperation in criminal matters to the Article 36
Committee. Both groups are made up of senior officials in the Justice and
Home Affairs area, with the Committee in a general coordinating role for
the Council.

In this document the Working Party reminds the Committee that the European
Commission “had entered a scrutiny reservation on the legal basis for the
proposal.” Three explanatory paragraphs about the position of the
Commission were deleted from the public version.

In these, the Presidency (Luxembourg) is quoted to say that the Commission
has not yet provided a written position nor a proposal for a proper first
pillar directive (with full co-decision rights for the European
Parliament). Therefore the JHA Council will just proceed as planned,
ignoring the severe legal protest. “The Presidency concluded that on the
present basis work on the draft Framework Decision should continue in line
with the conclusions drawn at the Council on 2 December 2004, and recalled
that the European Council Declaration of 25 March 2004 provided that
measures on retention of traffic data should be examined with a view to
their adoption by June 2005.”

The names of the individual Member States in the footnotes show which
countries have lobbied the hardest for general surveillance of all
citizens in the EU. For example Sweden wanted to extend the scope of data
retention to all sorts of police cooperation (in stead of mere ‘judicial’
cooperation), while the UK wanted to reintroduce ‘prevention’ of crimes to
the scope. The Belgian delegates expressed concerns about the provision in
Article 7 allowing Member States to subject requests for hand-over of data
to any conditions applying nationally. Belgium feared that some Member
States would use the lack of dual criminality as an excuse not to hand
over data to another country. Denmark was the only country who said they
wanted to retain this provision.

The minutes of the Working Party for cooperation in criminal matters from
8 and 9 March 2005 provide even more insight in these debates between
Member States. The Presidency has decided to eliminate national rules on
the access to data from Article 7, in spite of protest by Denmark, Sweden,
Germany, Austria, Ireland, the Netherlands, Malta, Lithuania and Latvia.
“The second sentence will be cut and pasted in modified wording into a
footnote explaining the position of some Member States who supported the

The Working Party had a difficult meeting on the issues of cost and scale
and type of data to be retained. The notes from the first document show
the Legal Service of the Council of Justice and Home Affairs Ministers
expressed reservations about the plan to include a very broad functional
list of data that should be retained, and in stead, proposed ‘a
technically more detailed list and a mechanism to revise that list’.
Germany, Austria, Finland and Poland supported this position. The Czech
Republic did not get any support for its efforts to change the specific
list into a list of options out of which Member States could choose. The
Presidency concluded that the framework decision should not become too
specific, and possibly contain an attachment with technical specifications
with a possibility to update that (mandatory) list. Germany and Austria
tried to exclude unsuccessful connections, but were outnumbered by
protests from a.o. Denmark, Malta, Spain and Slovakia.

Debating the length of retention, Italy seems to have finally won a
majority for its 48 months maximum (in stead of 36 months), supported by
France and Poland (in favour of not mentioning any maximum). Again, the
Czech Republic found hardly any support for its attempt to get rid of the
minimum period of 6 months. Only the UK saw some advantages, but Germany
insisted on the minimum of 6 months, arguing that competition in the EU
might be disturbed if Member States could opt for a lesser period. In the
Czech Republic a new telecommunication law will enter into force on 1 May
2005, granting full cost reimbursement to providers for wiretapping and
data retention. The draft Framework Decision leaves it entirely up to
Member States to deal with the costs of data retention. Germany and the
Netherlands found no support for their initiative to harmonise cost
division in the EU (without giving any opinion on who should bear the
costs, government or industry).

Last but not least, the delegates debated about access to data. Sweden
proposed to limit access to “investigation, detection and prosecution of
criminal offences”, but Belgium immediately protested that providers
should be able to use the data for commercial purposes. The Presidency
supported this latter viewpoint, claiming that the provider is the owner
of the data “and therefore it is difficult to limit its access to data.”

The next JHA Council takes place on 14 April 2005, but the draft framework
decision on data retention has been removed from the schedule. The next
meeting of the Working Party takes place on 19 April 2005.

Uncensored report from the Working Party to the Article 36 Committee (24.02.2005)