Finland's Presidency will indeed try to obtain a mandate from the EU Council to start interinstitutional negotiations on the draft regulation on the confidentiality of electronic communications. According to our information, it provides for a final technical discussion on 22 October, before a more political discussion, on 15 November.
Member State experts have been discussing this text for almost three years now, which modernises European rules on the confidentiality of online exchanges by including, in particular, circumvention operators such as Skype or WhatsApp (see EUROPE 11700/1). However, despite pressure from the European Parliament, which has been ready to enter into negotiations since the end of 2017, Member States have not been able to adopt a common position (see EUROPE 11892/6, 12322/13).
The main difficulties concern the level of protection to be granted to users, already covered by the General Data Protection Regulation (2016/679).
A new compromise text
The last technical discussion in the EU Council was on 11 October. On 17 October, the EU Council Presidency submitted to delegations a new compromise text incorporating some of their suggestions. Again, the changes remain relatively marginal: the new text allows data processing for a different purpose than initially planned, provided that the "modalities" of the processing or the existence of sufficient safeguards, such as "encryption", are taken into account. It also clarifies that operators can store the content of communications "at the request of the end-user". Or that the user or a trusted third party may record or store a communication after or before the communication. It adds that user consent is not required for autonomous vehicles, scientific research or statistics.
However, the new version does not reintroduce Article 10, which provided, in the Commission's proposal, for the concentration of configuration at browser level. This, despite appeals from Berlin. According to our information, Member States expect this article to be reinstated to a lesser extent in negotiations with the European Parliament.
The new Finnish text also retains the issue of combating child pornography in Article 6, thus creating a specific legal basis to derogate from the principle of consent (see EUROPE 12333/3).
A more precise timetable
On this basis, the Finnish Presidency intends to launch a final round table discussion on 22 October at a meeting of the EU Telecommunications Council Working Party, where child pornography and data retention could well be discussed again. The Presidency will then submit the dossier to the Member States' ambassadors, probably on 15 November. While the ambassadors can give it a direct mandate, the Presidency will probably seek the support of the telecommunications ministers on 3 December, as it is a highly sensitive dossier.
According to our information, the Portuguese, Lithuanian, Polish, Czech and Italian delegations, led by France, are among the main opponents to the dossier. Belgium and Luxembourg are not very enthusiastic either. But the Commission's continued support for its text, public pressure following the many scandals over the use of personal data, as well as the recent elections in Italy and in Portugal and the absence of a government in Belgium, could make it possible to adopt the text.
Pressure at its peak
In light of this timetable, the pressure is at its peak from the various lobbies. EDRI and AccessNow (digital rights), BEUC (consumers), the Open Society and Privacy International (human rights) published an open letter on 11 October calling on Member States to adopt the text.
On the other hand, 61 industrial organisations expressed serious concerns on 8 October and called on States to put pressure on the new European Commission to reconsider its proposal. During her hearing, the Vice-President designate of the future European Commission, Margrethe Vestager, reaffirmed to MEPs her support for the text. Link to the new compromise text: http://bit.ly/2qmA20B (Original version in French by Sophie Petitjean)