Net Freedoms in Europe: Recapitulating the capitulation

The European Parliament delegation led by Catherine Trautmann recently gave up on protecting EU citizens against arbitrary restrictions of their Internet access. In order to reach an agreement and avoid a clash with Member States, the Parliament retracted its support to the core element of notorious "amendment 138" : prior judicial decision before restrictions to access and usage of the Internet. This protection of citizens' fundamental rights against arbitrary restrictions of their Internet access came a long way. Here is a little restrospective on the "stations of the cross" of amendement 138.

(See also the rewording of amendment 138, preserving its core principles while adressing legal uncertainty, that was transmitted to MEPs last week)

Telecoms Package first reading: Amendment 138 against "three strikes"... and the Council of the EU

During the first reading of the revision of the five directives that are part of EU "Telecoms Package"1, amendments pushed by the entertainment were uncovered. They were discretely establishing an obligation of setting up "three strikes" schemes in Europe, whereby administrative authorities would have been forced to cooperate with entertainment representatives and lobbies to impose restrictions on end-users' Internet access.

Thanks to a massive campaigning by the civil society, These provisions were rejected in first reading. At the same moment an amendment pushed by citizens and signed by a wide coalition of Members of the European Parliament including Guy Bono (PSE, FR), Daniel Cohn-Bendit (Greens, DE), and Zuzana Roithova (EPP, CZ), numbered at that time "amendment 138", was put to vote. It guaranteed a protection for EU citizens against arbitrary and disproportionate restrictions of their Internet access, by requiring the Member States' network regulatory authorities to "applying the principle that 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 where the ruling may be subsequent.".

On September 24th first reading plenary, amendment 138 was adopted by 88% of the European Parliament, including rapporteur Catherine Trautmann, convinced by a last minute modification in the wording, who eventually invited her political group to vote it as well.

After the Parliament's first reading, the EU Commission gave its comment on the vote. Amendment 138 was considered " an important restatement of key legal principles inherent in the legal order of the European Union, especially of citizens' fundamental rights"2. Then, the Council of the EU, Under the French presidency, made its first reading of the Telecoms Package. All the modifications related to as many disagreements with the Parliament were commented but one: amendment 138 was simply removed from the package by the Council, with no explanation.

It was already obvious at that stage why The Council of the EU was opposing the amendment: France held the presidency of the Council, and Nicolas Sarkozy was at the same moment trying to push his "HADOPI", "three strikes" law in France. Imposing it in Europe was in the direct continuity with his plans to please his numerous friends within the entertainment industry, who helped his election. Nicolas Sarkozy, as head of the EU presidency, even did this rare and rude move of writing directly to Jose Emmanuel Barroso, head of the Commission, to ask him to get rid of amendment 138. The provision was indeed, directly opposed to his "HADOPI" law (and maybe to similar projects being pushed in various Member States?).

Second reading: "Amendment 138" is shaken but lives on

As the second reading by the Parliament is based on the text adopted in first reading by the Council, MEPs had to put amendment 138 back on, on committee stage, before having a chance to be voted in Plenary. At that stage, in the ITRE committee, Catherine Trautmann tried to get rid of "amendment 138" (renumbered amendment 46 at this stage) and replace it by a neutralized compromise agreed with representatives of the Council. Under strong scrutiny by the civil society, the ITRE committee voted with a very strong majority to keep the original "amendment 138" in the text.

Yet, even after the committee vote, Mrs Trautmann continued to negotiate in closed-doors meetings with the Council of the EU. Pressure was very strong on her shoulder, as she feared that if the Council disagreed with what was voted in second reading, the whole Telecoms Package would have to continue its way into the "conciliation procedure". In that case, the codecision of the whole package would not be finished before the elections where she could use it as a personnal achievement.

She presented on her behalf a new wording, negotiated with the Council, that completely emptied the original of its substance. No "prior ruling by the judicial authorities" anymore, but some vagues guarantees, already present in European acquis, useless to counter "three strikes" or any kind of other restrictions of access to the Net.

Catherine Trautmann, to ensure to quickly finish with the "telecoms package" even tried a procedural trick where she managed to invert the plenary vote order to have the "compromise" voted before, in place of the original amendment. In case of adoption of the compromise pre-agreed by the Council, the original amendment would have not even be put to vote, and the whole package would have finished its cours. But...

With strong support from the whole ALDE and Green groups, the "tricked" inversion of the voting order was reverted, the original amendment put to vote before the "compromise". During that swift maneuver, Trautmann, cornered between her shadowy negotiations against, and strong public position in favor of citizens' freedoms, called her group to vote in favor. Amendment 138 was adopted a second time, in plenary, on May 6th 2009... once again with a high majority of 88% of voters.

With this only point of disagreement between the Parliament and the Council, the whole Telecoms Package was set to enter "conciliation phase", a negotiation in small committee between the two institutions.... after June's European elections.

Conciliation Phase. Time for the Parliament to lie down.

The Telecoms Package entered informally in its conciliation phase3 From September 28th, the delegation of 27 MEPs representing the European Parliament met every week to discuss a negotiation mandate, given to their negotiation team. This team, comprised of rapporteur Catherine Trautmann (S&D, FR), Alejo Vidal-Quadras (Vice-Président EPP, ES), and Herbert Reul (EPP, DE), would then meet in small "trialogue" meeting with the Council of the EU and the Commission to try to "solve" this only remaining disagreement between the co-legislators.

The position of the Council has been known from the beginning: the European Parliament should not dictate to the Member States how to restrict citizens' access to the Internet. On their first meeting, most members of the Parliament delegation also stand strong on their position: Internet access has become essential to exercise fundamental freedoms such as freedom and expression, and therefore has to be restricted only by a judge, guardian of liberties.

From these irreconcilable positions, Catherine Trautmann would have to work hard to find a compromise. As the rapporteur, if the negotiations were to fail and the whole package was rejected, it would be a personal failure for her. She therefore consciously chose to work on what she could influence: softening the position of her colleagues from the Parliament delegation in order to make them give up on protecting citizen's freedoms and agree with the Council of the EU.

At first she came to a Parliament delegation meeting with the Council's new proposal. Under this horrible text, where indeed the notion of a "prior ruling by the judicial authorities" has disappeared, Member States would have, as an exception to weak protective principles, the possibility to restrict Internet access for the purpose of "the prevention, investigation, detection and prosecution of criminal offences”. A Net "Thought Police" instead of strong protections of fundamental freedoms that didn't convince... Thanks to yet another strong awareness campaign by the civil society, this compromise was not accepted as such by the Parliament delegation.

But then Trautmann had a smart plan: Instead of asking for independent legal studies about which parts of the original amendment had to be modified in order to make it less attackable by the Council, as it was asked by the Green group, she asked for an analysis to the Parliament internal legal service.

Yet, the way the questions of that legal analysis were redacted revealed the intention of Mrs Trautmann: to find a good argument to get rid of amendment 138 and make the compromise look acceptable. The legal services have interpreted their mission in a much debatable manner. They have looked for the most restrictive interpretation of the power of the Community to adopt under art. 95 provisions that have an impact on the penal domain in Member States. In reality, the case law of the European Court of Justice is complex: it has recognized such a power in some cases where the provisions were judged necessary to the fundamental objectives of the Union and a well-functioning internal market. In another case, it rejected it, judging that the provision was going beyond these needs. Now the legal services expressed the opinion that requiring a prior judicial decision before restrictions to fundamental rights and freedoms connected to the access and usage of the Internet were not necessary for a well functioning internal market. As we argue in this memo4 this is a much disputable opinion, and one that should be assessed not only in view of a legal background but also with regard to the major political and social challenges of our times. The legal services would have been better inspired to look for all possible ways to help the Parliament addressing these challenges.

With this study in hand, Trautmann had the perfect argument to convince her colleagues. Since it was written by the internal services of the Parliament, most of them accepted it without questioning its bias. Mrs Trautmann also used very persuasive and personal arguments, emphasizing the risk that the whole package be rejected. Therefore, for everybody in the S&D group, as well as the EPP group, the hypothetical - and in any case addressable - lack of conformity of the original amendment 138 (and its mention of a "prior ruling by the judicial authorities") with article 95 of the EC Treaty became pure illegality. Mrs Trautmann had convinced her colleagues that there was no other option than to give up on the core principle of the original text.

She hastily came up with a new wording, that looked less terrible than the previous one, yet totally neutralized. After calling all her colleagues from the S&D group to a meeting to call on their "solidarity", a new Parliament delegation meeting was held. Apart from the Green and ALDE group, who sticked to the idea of the original amendment, all MEPs from S&D and EPP joined Trautmann into abandoning amendment 138 and its core principle on October 19th. The door was now opened in Europe for arbitrary restrictions of Internet access without a prior ruling by the judicial authority.

But the fate of the protection of citizens' freedoms on the Internet in Europe is not sealed yet. After this capitulation by the Parliament's delegation, it's negotiators met again in "trialogue" with the Commission and the Council, to propose this new, neutralized, compromise. Yet the Council is still not satisfied with the wording. There is yet too much of a semblance of protection, according to the current levels of protection of Freedom of expression in the EU, against Net access restrictions that would be done by private parties.

Are the true motives of the Council, in their fight against citizens' freedoms only to be able to impose "three strikes" policies, and state-sponsored content filtering? Or are they also willing to authorize private actors, such as telecoms operators, to dangerously harm Net Neutrality by restricting or filtering access to content, services, and applications? As they proved it already with the rest of the Telecoms Package5 Catherine Trautmann and her colleagues, the whole European Parliament now marches in line against its previous positions and against its citizens and electors. Where will they stop? It's up to us....