The Council of the European Union opposes amendment 1381 for reasons that are still unclear. However, the Commission has come up with a new proposal2, supposedly backed by the Council, which could allow for worrying exceptions to the fundamental rights guaranteed by Community law. However, there are good-faith concerns about the current wording of amendment 138. Although its core principles need to be preserved, amendment 138 can and should be improved to better respect the Community legal order.

This memo (download this memo as a PDF file) aims to:
i) point out the dangerous elements of the Commission's new proposal;
ii) outline various aspects of amendment 138 that could be improved to better fit Community law;
iii) explain how a reworded provision could preserve the core principles of amendment 138

• 1. Amendment 138: Article 8.4.g of the Framework Directive. (...) "No restriction may be imposed on the fundamental rights and freedoms of end-users, without a prior ruling by the judicial authorities, notably in accordance with Article 11 of the Charter of Fundamental Rights of the European Union on freedom of expression and information, save when public security is threatened in which case the ruling may be subsequent."
• 2. Commission's new compromise proposal: Article 1.3.a of the Framework directive. "Measures taken by the Member States regarding end-users' access to and use of services and applications through electronic communications networks shall respect the fundamental rights and freedoms of natural persons, including in relation to privacy, freedom of expression and access to information and due process and the right to effective judicial protection in compliance with the general principles of Community law. Any such measure shall in particular respect the principle of a fair and impartial procedure, including the right to be heard. This paragraph is without prejudice to the competence of a Member State to determine in line with its own constitutional order and with fundamental rights appropriate procedural safeguards assuring due process. These may include a requirement of a judicial decision authorising the measures to be taken and may take account of the need to adopt urgent measures to be taken and may take account of the need to adopt urgent measures in order to assure national security, defence, public security and the prevention, investigation, detection and prosecution of criminal offences".

As the negotiations of the conciliation committee on the Telecoms Package unfold, the Council of the European Union came up with a new, alarming proposal.

Updated on Oct. 13th

Updated on Oct. 13th

On Monday, September 28th, the Conciliation committee on the Telecoms Package – a major reform of the Telecommunications sector in the European Union (EU) – started discussing contentious provisions that remain in the text. Early May, Rapporteurs for the EP and diplomats from the Council of the EU reached a consensus on the whole package, but one amendment that was finally passed by the Parliament : the notorious amendment 138. This fundamental provision is now at the heart of the negotiation.

Brussels, September 28th - The first conciliation meeting on the Telecoms Package will take place tonight at 7:30PM. In this meeting, 27 Members of the European Parliament will decide on the future of Internet in Europe. They will choose whether to fix or maintain the dreadful anti-Net neutrality dispositions voted in second reading by the Parliament, under the influence of AT&T. Rapporteurs and representatives of the Swedish Presidency opposed this idea so far. European citizens only have a few hours to urge MEPs to preserve Europe's innovation, competition, and citizen's fundamental rights.

The Rapporteur of a European Parliament directive plays a crucial role at the second reading: he must forge a compromise with the Council of Ministers between the opinion expressed by the Parliament at the first reading and the common position adopted by the Council. If he succeeds, this compromise stands an excellent chance of becoming the report that comes to a vote in parliamentary committee, then reach a vote in plenary session by all Members of the European Parliament (MEPs). So the directive, the outcome of a consensus between the two legislative bodies, will become European law. If not, the Council and Parliament must reach an agreement for a third reading: the conciliation phase.

Paris, April 2nd 2009 - The Council of EU is trying to reintroduce a distorted version of amendment 138 to “Telecoms Package”1. It could be interpreted by the archaic industries promoting "graduated response" as authorizing any administrative authority to order restrictions on fundamental rights and freedom. Such a legalization of parallel administrative justice, comparable to the French “graduated response” is unacceptable. The European Parliament must strongly reject this huge threat to EU citizen's freedom.

• 1. http://www.laquadrature.net/wiki/Telecoms_Package_Framework_Article_8_4_ga_Parliament_First_Reading.

Here are the letters (PDF attached below) La Quadrature du Net sent to members of IMCO and ITRE committees about the crucial votes on Telecoms Package second reading, on March 31st.

Letter to IMCO members

The joint-venture of the NGOs "La Quadrature du Net" with help of "FFII" (=Foundation for a free informational Infrastructure; Europe) and "AK Vorrat" (=Arbeitskreis Vorratsdatenspeicherung; Germany) and netzpolitik.org has updated their voting recommendations for the plenary vote on the "Telecoms Package" on September 24th 2008 at 11:30AM at the European Parliament in Brussels. A visual art installation about digital surveillance and a press meeting will be held in front of the European Parliament before the vote (see details below).