Brussels, 05/11/2009 (Agence Europe) - The European Parliament, the EU Council of Ministers and the European Commission are collectively sighing with relief because the telecoms package looks set to enter the final stages of approval. After intense negotiations until well into the night of Wednesday 4 November to Thursday 5 November, the conciliation committee managed to reach unanimous agreement on the controversy surrounding Article 138, the final outstanding issue over which the EP and the Council of Ministers were having trouble agreeing. We managed to reach an agreement that will guarantee users' rights, explained Alejo Vidal-Quadras (EPP, Spain), who was leading the talks for the EP. We wanted to show that it was possible to create coherent legislation that strikes a balance between fair competition on the market and citizens' rights, added Catherine Trautmann (S-D, France), rapporteur on the telecoms directive. The Swedish minister, Asa Torstensson, who was leading the negotiations for the Council of Ministers, commented that cooperation between all the member states' governments was essential in order to reach agreement and a good outcome had been achieved that respected the treaty. On behalf of the European Commission, the person who had initiated the reform and been present at the heart of the talks, Viviane Reding, hailed what she described as “remarkable work” by the conciliation committee. She explained that such legislation did not exist anywhere else in the world and Europe was setting the example. Taking fundamental rights into account sends out an important signal, she added.
Neither the Commission's original proposal nor the Council of Ministers' common position contained any guarantees against excessive restrictions on the internet. On two occasions, the EP asked for user rights not to be restricted without a prior decision to this effect by the judicial authorities. Both times, the Council of Ministers rejected the request. Vidal Quadras pointed out that without the European Parliament, there would never have been any discussion of the limits to be imposed on governments and the MEPs are very proud of what they have achieved, thanks to the Council adopting a constructive attitude. Both sides made concessions and were able to agree in the end on the criteria to be respected when preventing people from accessing the internet. They agreed to replace Amendment 138 with a new provision (added to the directive) that deals with freedom of access to the internet (Article 1(3)a). The EP had to acknowledge that it does not have the power to intervene in member states' legal systems to demand (as in Amendment 138) prior judicial authorisation for any decision by a judge to limit access to the internet, but the EP did manage to obtain procedural safeguards under respect of the guarantees set out in the European Convention for the Protection of Human Rights and Fundamental Freedoms. The Council of Ministers grudgingly agreed (Ed: France and the UK were the most reluctant of the member states) that it should be made explicit in the directive that the right to access the internet is a fundamental human right and restricting access can only occur if it is “appropriate, proportionate and necessary” and “subject to adequate procedural safeguards”. Article 1(3)a stipulates that any restrictions on access to the internet must always “presume innocence” and “the right to privacy”. Prior, fair and impartial procedures must be guaranteed, including the right of reply. The only time when being cut off from the internet is not covered by the directive is when public safety is at stake. The decision to use a prior procedure can then be made after the event (after the person concerned has had their internet connection cut off). This exemption can be used to tackle child pornography, an issue which many member states feel strongly about. Amendment 138 (which stipulated that no restrictions can be imposed on the rights and freedoms of end users without a prior decision by the judicial authorities) was problematic in this respect because it required harmonisation of member states' legal systems, which outstrips the powers of the EU in the domain covered by the telecoms legislation, explains the EP, adding that this in turn would run the risk of the whole directive being annulled by the European Court of Justice.
The agreement now has to be endorsed by the EP and the Council of Ministers before the telecoms package can be adopted next year. The EP is planning to vote on the agreement in plenary on 23-26 November 2009. At this stage, the EP and the Council of Ministers only have two options - to endorse or reject the agreement. They do not have the option of making further amendments. A simple majority is required in the vote for approval by the EP. The Council of Ministers will use a qualified majority vote. If the two institutions were to reject the agreement, it would make it impossible for the telecoms package as a whole to come into force and the whole legislative process would have to start over (with the Commission publishing new draft legislation).
The political groups are happy with the agreement - Greens are calling for vigilance over
how directives are transposed into domestic law by the member states
The political groups are happy with the agreement reached in the conciliation procedure, seeing it as a victory for the European Parliament. Although Amendment 138 had to be dropped for reasons of legal security, the new replacement measure added to the directive makes access to the internet an explicit fundamental right.
As far as the Christian Democrats (EPP) are concerned, the EP won the day when it comes to the recognition of internet users' rights in law in the face of reluctance from the member states. Parliament forced governments to discuss the criteria that have to be met when restricting internet access and this is a major victory for the parliament, an institution that defends Europeans' rights an freedoms, explained Alejo Vidal-Quadras, who led the talks for the EP. German MEP Herbert Reul, who also took part in the talks, said that the EP had assigned huge value to individual freedom and the inviolability of privacy. On behalf of the Alliance of Liberals and Democrats (ALDE), Lena Ek of Sweden, who is a member of the conciliation committee, said that the Liberals' strategy was “no prior authorisation, no telecoms package” and it had been a hard fight, but the EP had bared its teeth and the member states cannot now cut off access to the internet without prior and fair legal proceedings, to which the presumption of innocence has also been added. I am delighted that the Council has finally understood that the EP would not give in, added her Romanian colleague Adina Valean. The European Conservatives and Reformers (ECR) also welcome the agreement paving the way for adoption of the telecoms package. They point out that the new rules will improve cross-border competition and give consumers greater rights. This is a major step forward for consumers, who will have greater rights to high quality communication services with greater information from their ISPs and more choice in a highly competitive market, commented Malcolm Harbour, rapporteur on consumer rights under the telecoms package, who represented the ECR at the conciliation committee. He explained that the MEPs had insisted that governments must respect the rights of individuals in all procedures that might lead to them being cut off from the internet. The Progressive Alliance of Socialists and Democrats (S&D) said that the deal was good news for European citizens. One of their members, Catherine Trautmann of France, who had been involved in the talks and at the heart of the controversy as the author of the report on the directive to which Amendment 138 was made, said that the EP had gone as far as it could and would have overstepped its powers if it had required of member states that decisions to suspend access to the internet be subject to prior approval from a judge. Her Swedish colleague Marita Ulvskog said that the deal had received unanimous approval and the S&D Group had played a key role in achieving this. The Greens/EFA Group believes the compromise is a victory for users of the internet, but says the battle for the protection of internet users' rights has not yet been won. Great defenders of internet users' rights, the Greens fought for the spirit of Amendment 138 to be retained. They are circumspect about how member states - particularly France and the United Kingdom - will react when transposing the directive into their legal systems. Philippe Lamberts of Belgium, a member of the parliamentary delegation on the conciliation committee, said that without pressure from the Greens/EFA and their Swedish MEP from the Pirates Party, Christian Engstrom, this successful outcome would never have been achieved. He said the compromise was a victory for the European Parliament and for the Europeans who have been active around the issue. He particularly welcomed the change of attitude by the European Conservatives, but said that plenty now remained to be done in order to achieve the greatest protection levels in the digital age. Lamberts hoped there would be a greater recognition that the internet is a vital part of modern life. (I.L/transl.fl)