Out-Law News | 25 Nov 2005 | 1:49 pm | 3 min. read
The changes could put the Parliament on a collision course with the European Council of Ministers, which has threatened to push through its own data retention proposals if the two institutions cannot compromise on the draft Directive before the end of the year.
Meeting in Brussels yesterday, members of the Committee adopted a report by German rapporteur Alexander Nuno Alvaro approving the Commission text for the Directive – subject to amendments to restrict the use of retained data and to safeguard the privacy of EU citizens. The report was approved by 33 votes to 8, with 5 abstentions.
MEPs agreed that there was a need to retain data for the detection, investigation and prosecution of crime, but only for “specified forms” of serious criminal offences (terrorism and organised crime), and not for the mere “prevention” of all kinds of crime. Committee members felt that the concept of prevention was too vague and could lead to abuse of the system from national authorities.
They also deleted a paragraph from the Commission proposal authorising Member States to use data retention for “other related purposes”.
MEPs then stipulated that the data should be retained for a minimum of six months and a maximum of 12. This differs from the Council position, which suggests 12 to 24 months. The Committee also added a provision for “effective, proportionate and dissuasive” penal sanctions for companies who fail to store the data or misuse the retained information.
Only judicial authorities from an EU Member State should have access to the retained data from phone or internet providers, said MEPs. Furthermore, access should be granted to third countries, such as the US, only by means of an international agreement.
MEPs also insisted that if national law enforcement authorities needed to have access to concrete data they would have to get judicial authorisation. In contrast, the Commission and the Council would prefer to grant access to any competent authority determined by Member States.
In addition, MEPs amended the draft to ensure that access to retained data would be limited to specific purposes and would be granted on a case-by-case basis under the "push system" – where authorities need to make a specific request to a telco each time they need specific data, instead of having access granted to the whole database, as the Council would prefer.
With regard to the type of data to be retained, MEPs approved the registration of location data on successful calls, SMS and internet use, but preferred to leave the question of retaining data on unsuccessful calls to the discretion of Member States.
According to the Committee, telecom companies do not currently register lost calls for billing purposes and to do this using new technologies would be expensive.
Finally, MEPs stated that telcos should be fully reimbursed by Member States for all costs of retention, storage and transmission of data, including investment and operational costs – contrary to both the Council and Commission positions.
Speaking to Reuters, Alexander Alvaro explained that the Commission’s draft Directive was now more balanced as a result of the amendments.
"Everything that makes this Directive proportionate and balanced is now in, especially concerning the limitation of data types, limitation on storage period, safeguards on access and sanctions," he said.
But the UK presidency, which is pushing for the measure to be agreed before the end of the year, was not so happy.
“The European Parliament has come some way from previous positions but Council and MEPs are not currently on the same page,” a UK presidency spokesman told Eupolitix.com. “On all key elements of the proposals there is some considerable difference between them.”
In contrast, Green MEPs, who voted against the report, felt that the approved amendments had gone too far towards the Council position. Dutch Green MEP and LIBE member Kathalijine Buitenweg warned: "These measures are very expensive and form a serious breach of the right to privacy. Violation of this fundamental right has to be extremely well justified. This means: absolutely necessary, proportional and effective. We're far from convinced that the proposals meet these conditions.”
Buitenweg added that, initially, the views of the Greens were shared by a large majority of the Justice and Home Affairs Committee. "The liberal rapporteur Alvaro was in favour of restricting the retention of telephone data to three months," she said. "He was also against the retention of internet data. Many Euro-MPs however gave in to heavy pressure from national governments."
The approved report will now go forward to the full Parliament for a vote. This is due to take place in mid-December.
In the meantime, the Council of Ministers is due to discuss the matter at the next meeting of the Justice and Home Affairs Council on 1st and 2nd December.
While Ministers would prefer to have the backing of the Commission and Parliament in pushing through the data retention legislation, the Council said in October that it was prepared to push the Council’s original, more stringent measures through on its own, if progress had not been made by the end of the year.