Out-Law / Your Daily Need-To-Know

EU Parliament drew back from file-sharer demands over legal uncertainty

Out-Law News | 26 Oct 2009 | 2:20 pm | 1 min. read

The European Parliament has had to withdraw demands for court oversight of the cutting off of file sharers' internet access after it received legal advice that it had been over-stepping its powers.

The Parliament is locked in a power struggle with the Council of Ministers and the European Commission over its demands that a telecoms reform package safeguard the rights of internet users to a hearing before disconnection.

The Commission and Council want their Telecoms Packaged passed but by rejecting Parliament's amendment have had to block the whole scheme. The parties will enter formal conciliation on 4th November and must have a compromise deal to put to their members by 30th December.

The Parliament has dropped the controversial Amendment 138, though, and has adopted a new preferred text because of legal problems with the original, according to a Parliament source.

"The Parliament has had legal advice from its own legal service that Amendment 138 was not legally admissible," said the source. "It was told that it went beyond Community competency."

Rights owners and some countries, such as France and the UK, want to be able to disconnect the internet connections used by alleged file sharers. The Parliament's Amendment said that users could not be disconnected "without a prior ruling by the judicial authorities".

"This is internal market legislation and you can't tell member states how to organise their judicial systems, it is beyond Community competence," said the source. "So the MEPs are trying to find a way to keep the content in a way that is legally feasible."

The Parliament will approach the conciliation process with a new proposed clause that it hopes will achieve the same ends and stay on the right side of EU Community law.

"Any such measures liable to restrict those fundamental rights or freedoms may only be taken in exceptional circumstances ... and shall be subject to adequate procedural safeguards in conformity with the European Convention for the Protection of Human Rights … including effective judicial protection and due process," it says in part.

"The result should be that anyone who whose access might be cut off should have access to due process, whether that is a court or a tribunal or an administration," said the source. "It does not have to be a judge but it should respect the rights guaranteed under the European Convention on Human Rights."

Conciliation will involve the Council, Parliament and Commission. If they reach agreement by 30th December they will have to take the compromise text for approval by their respective memberships by February. If agreement is not reached between the three bodies the entire Telecoms Package will be scrapped and the Commission will have to start the legislative process again, the Parliament source said.

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