Brussels, 10 October 2005 COUNCIL OF THE EUROPEAN UNION 12894/1/05 REV 1. Interinstitutional File: 2004/0813 (CNS) LIMITE COPEN 153 TELECOM 99 - PDF

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COUNCIL OF THE EUROPEAN UNION Brussels, 0 October 2005 Interinstitutional File: 2004/083 (CNS) 2894//05 REV LIMITE COP 53 TELECOM 99 OUTCOME OF PROCEEDINGS of : COREPER dated : 5 October 2005 to : Council
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COUNCIL OF THE EUROPEAN UNION Brussels, 0 October 2005 Interinstitutional File: 2004/083 (CNS) 2894//05 REV LIMITE COP 53 TELECOM 99 OUTCOME OF PROCEEDINGS of : COREPER dated : 5 October 2005 to : Council No. prev. doc. : 2894/05 COP 53 TELECOM 99 Subject : Draft Framework Decision on the retention of data processed and stored in connection with the provision of publicly available electronic communications services or data on public communications networks for the purpose of investigation, detection and prosecution of crime and criminal offences including terrorism. I INTRODUCTION The Declaration of the European Council of 25 March 2004 on combating terrorism provides that an instrument on retention of communication data should be adopted by June The proposal on data retention made in accordance with this mandate in April 2004 by FR/IR/SE/UK has been dealt with as a matter of priority and urgency under the Irish, Netherlands and Luxembourg Presidencies. It has, however, not been possible to respect the deadline set by the European Council, and efforts have been further intensified under the UK Presidency. In its declaration of 3 July 2005 on the EU response to the London bombings on 7 July 2005, the JHA Council has provided that the draft Framework Decision on data retention should be agreed by October The Presidency is strongly committed to reaching agreement on the legal basis for an instrument on data retention and some issues on the substance of the proposal at the October 2005 JHA Council. 2894//05 REV IM/he The Presidency also holds the view that serious consideration will need to be given to the proposal for a Directive on data retention, which the Commission adopted on 2 September At its meeting on 20-2 September 2005 the Article 36 Committee examined a number of outstanding questions on the above draft on the basis of doc. 2236/05 COP 42 TELECOM 90. A specific question regarding the scope of the European Evidence Warrant in relation to data retention was also considered by the Article 36 Committee on the basis of doc. 586/05 COP 2 TELECOM 82 with a view to resolving the reserves on Article 7 of this Framework Decision. JHA Counsellors met on 30 September 2005 when they discussed the text of the draft Framework Decision on the basis of doc. 2660/05 COP 49 TELECOM 95. JHA Counsellors dealt with the reservations and opinions set out in the footnotes, not with the legal basis. COREPER dealt with the legal basis on 29 September and on 5 October The text resulting from the discussions is set out in the Annex and the outstanding questions are set out under II below. The Presidency will also prepare a document for the October JHA Council addressing issues related to the legal basis and substance in the light of the discussions in COREPER. The European Parliament has been invited to give its opinion on the draft. It rejected the draft on 7 June 2005 and on 27 September Several delegations have entered general scrutiny reservations and general parliamentary scrutiny reservations (including NL) on the draft. The Commission has entered a general scrutiny reservation and on 2 September 2005 adopted a proposal for a Directive on retention of communication data. II OUTSTANDING QUESTIONS The issues which are outstanding are set out below. Reference is made to the Annex for details. 2894//05 REV IM/he 2 a. Costs and benefits: Recital 6 and Article (3) The JHA Council agreed at its meeting in December 2004 that particular consideration should be given to the proportionality of the draft Framework Decision. The issue of costs and benefits of the measure was discussed at the JHA Council on 2 and 3 June 2005 and again at the informal JHA Council on 8 and 9 September Recital 6 leaves it open to each Member State to decide on possible contributions to Industry to cover costs incurred by Industry by the implementation of the Framework Decision and simply encourages Member States to consult with Industry on the practicality and cost of retaining data. Recital 6 remains subject to scrutiny reservations by HU/SK. The Working Group had considered a Presidency proposal for a new indent of Article (3) which provides that Member States may make exceptions from the general obligation to retain data taking into account the market share of the service provider concerned and the size of the network relative to the size of the market. As most delegations were opposed to this proposal, the Presidency withdrew it. However, AT/DE thought that it should be reinserted in the text. b. Articles 2, 3 and 8 - the list of data to be retained - In order to address the reservations in relation to Internet data, the Presidency had proposed a compromise package whereby Internet chat was included in Article 2(2) along with the wording proposed by FI ( provided by publicly available electronic communications service providers ). In conjunction with that, a review clause was inserted in Article 8. Several delegations (IT/HU/ES/CZ) could accept or supported the Presidency proposal. Others wanted to go further and include logs of web browsing, Internet chat and peer-to-peer communications (BE/SW/LT/DK). However AT/FI/LV/DE/FR/IE/GR/SK/EE could not accept the inclusion of Internet chat or other Internet data types expressing concern that the inclusion of such data might have an impact on the costs incurred and / or require more indepth consideration in respect of a clear distinction between traffic data and content data which might risk delaying discussions. They thought that the outcome of the meeting of the Working Party in July 2005 reflected the minimum consensus and wanted to revert to that wording. The proposed review clause met with acceptance. 2894//05 REV IM/he 3 In the light of the discussion by JHA Counsellors, the Presidency proposes to revert to the definition of Internet data that is contained in the outcome of proceedings of the meeting of the Working Party in July (doc. 50/05 COP 5 TELECOM 8), i.e. to remove Internet chat from the definition of Internet Communication Services in Article 2(2). It would therefore fall within the terms of the review clause provided for in Article 8(4). - Article 8(3) provides that Member States for a transitional period of 2 years may choose not to retain data regarding unsuccessful call attempts; enhanced media services and multi-media services; and internet access and internet communication services. DE/AT/EE/CZ/LV believe that this does not go far enough to address their concerns at being obliged to retain data on unsuccessful call attempts and favour instead an opt-in/opt-out clause for such data. FI/NL also have reservations. IT/FR/LUX/DK/ES/HU/SK oppose an opt-out and in some cases believe that the transitional period is too long. c. Article 4 - Periods of retention At the JHA Council in June there was support for the approach to the retention periods in Article 4. However, a number of delegations (DE/FI//LV/NL/PT) have maintained their scrutiny reservations on Article 4 on the basis that the retention periods can only be agreed once Articles 2, 3 and 8 have been agreed and the list of data to be retained consequently finalised. d. Article 5 - Data security and data protection At the Article 36 Committee meeting the Presidency's proposal to address reservations by some delegations (AT/FI/SI) was agreed, subject to scrutiny reservations by the COM/HU. They thought that Article 5 could be replaced by a reference to Directive 95/46/EC. e. Article 7 - judicial cooperation The first sentence of Article 7 of the draft Framework Decision on retention of communication data proposes that Member States should execute cross-border requests for retained communication data in accordance with applicable instruments on judicial co-operation in criminal matters . These instruments are at present in particular the 959 Convention on mutual assistance in criminal matters and its Protocols and, for some Member States that have ratified it, the 2000 Convention on mutual assistance in criminal matters between the Member States and its Protocol. In future, the EEW may apply. 2894//05 REV IM/he 4 The second sentence of Article 7 provides that the requested State may make its consent to a request for retained communication data subject to any conditions which would have to be observed in a similar national case. During discussions on the draft Framework Decision on retention of communication data, several delegations and the Commission called for the deletion of the second sentence, which, in their view, would allow requests for mutual assistance to be refused to a wider extent than provided for under existing instruments. Several other delegations insisted on maintaining the second sentence. This was in particular linked with the possible consequences of the application in the future of the EEW to retained communications data. Based on the discussions in the Working Party and a proposal made by the Luxembourg Presidency, the Presidency made the following proposal for a compromise solution to the Article 36 Committee (see in detail doc. 56/05 COP 2 TELECOM 82): - the deletion of the second sentence of Article 7 of the draft Framework Decision on retention of communication data. - an explicit exclusion of retained communication data from the scope of the first instrument on the EEW. - a Council declaration to read The Council acknowledges that for the purposes of Article 7 of the Framework Decision on the retention of communications data, the applicable instruments on judicial co-operation in criminal matters for executing requests for the transmission of retained communication data are, at the time of its adoption, the 959 Convention on mutual assistance in criminal matters and its Protocols and, as applicable, the 2000 Convention on mutual assistance in criminal matters between the Member States and its Protocol. The Council undertakes however to re-examine the mechanism for requesting and providing retained communications data within the terms of the second stage of the European Evidence Warrant, a proposal for which is expected in 2007 in accordance with the Action Plan implementing the Hague Programme on strengthening freedom, security and justice in the European Union. Subject to a scrutiny reservation by DK, this was acceptable to a majority of delegations. However, the NL/DE thought the second sentence of Article 7 should be maintained. The COM has also suggested the deletion of the entire Article 7. f. Legal basis The proposal for a Framework Decision is based on Article 3()(c) and 34(2)(b) TEU. The Commission reserved at an early stage of the negotiations a scrutiny reservation on the legal basis, and maintained that position at the JHA Council on 2 December //05 REV IM/he 5 After having studied the question, the Commission entered a reservation on the legal basis. The Commission services have in 7735/05 COP 64 JUR 38 given the reasons for this reservation. In the view of the Commission, the parts of the proposal providing for a harmonisation of the categories of data to be retained and the period for retaining such data fall within EC competence and would need to be adopted on the basis of Article 95 TEC. On 2 September 2005 the Commission adopted a proposal for a Directive on retention of communication data. The Legal Service of the Council has given its opinion on the question in 7688/05 JUR 37 COP 62 TELECOM 2. The Legal Service has come to the conclusion that the harmonisation of data to be stored by service providers during a given period and setting up the duration of that period are matters for the Community's sphere of competence, and has specified that these aspects may not be the subject of a Framework Decision based on Title VI TEU, as such a Framework Decision would affect the provisions of Directive 2002/58/05 and would thus be adopted in breach of Article 47 TEU. It follows from the conclusions that other parts of the draft Framework Decision, such as Article 6 (access to retained communication data) and Article 7 (requests for transmission of retained communication data under judicial cooperation in criminal matters), do fall within Title VI TEU. The appropriate legal basis for rules on data retention was not discussed by JHA Counsellors but their discussions on the detail of the Framework Decision took place in the knowledge of the Commission s proposal for a Directive on retention of communication data. 2894//05 REV IM/he 6 ANNEX Draft Framework Decision on the retention of data processed and stored in connection with the provision of publicly available electronic communications services or data on public communications networks for the purpose of investigation, detection and prosecution of crime and criminal offences including terrorism. THE COUNCIL OF THE EUROPEAN UNION Having regard to the Treaty on European Union, and in particular Article 3()(c) and Article 34 (2)(b) thereof, Having regard to the initiative of the French Republic, Ireland, the Kingdom of Sweden and the United Kingdom, Having regard to the Opinion of the European Parliament, Whereas :. Offering a high level of protection in an area of liberty, security and justice requires that the investigation, detection and prosecution of crime and criminal offences be carried out in an efficient and effective manner which respects the fundamental human rights of individuals. 2. The plan of action of the Council and the Commission on the best ways to implement the provisions of the Treaty of Amsterdam on the establishment of an area of liberty, security and justice, the conclusions of the European Council at Tampere on 5-6 October 999, the European Council at Santa Maria da Feira on 9-20 June 2000, the European Commission in its scoreboard and the European Parliament in its resolution of 9 May 2000 call for an intervention in the area of high tech crime. The recitals have not been fully examined. 2894//05 REV IM/he 7 3. The conclusions of the Council of 20 September 200 call for care to be taken to ensure that the forces of law and order are able to investigate criminal acts which involve the use of electronic communications systems and to take measures against the perpetrators of these crimes, while maintaining a balance between the protection of personal data and the needs of the law and order authorities to have access to data for criminal investigation purposes. It is noted in the conclusions of the Council of 9 December 2002 that, because of the significant growth in the possibilities afforded by electronic communications, data relating to the use of electronic communications is now a particularly important and valuable tool in the investigation, detection and prosecution of crime and criminal offences, in particular organised crime and terrorism. 4. The Declaration on Combating Terrorism adopted by the European Council on 25 March 2004 instructed the Council to examine measures for establishing rules on the retention of communications traffic data by service providers with a view to adoption by June It is essential to retain data existing on public communications networks, generated in consequence of a communication, hereafter referred to as data, for the investigation, detection and prosecution of crimes and criminal offences, in particular those offences involving the use of electronic communications systems. This Framework Decision relates only to data generated as a consequence of a communication or a communication service and does not relate to data that is the content of the information communicated. In particular, it is necessary to retain data in order to trace the source of illegal content such as child pornography and racist and xenophobic material; the source of attacks against information systems; and to identify those involved in using electronic communications networks for the purpose of organised crime and terrorism. 6. Preservation of specific data relating to specified individuals in specific cases is not sufficient to meet these requirements. In investigations, it may not be possible to identify the specific data required or the individual involved until many months or years after the original communication. It is therefore necessary to retain certain types of data, which are already processed and stored for billing, commercial or any other legitimate purposes, for additional periods of time in anticipation that they might be required for a future criminal investigation or judicial proceedings. This Framework Decision therefore concerns the retention of data and does not relate to the preservation of data. 2894//05 REV IM/he 8 7. In recognition of the importance of the need to retain data, Article 5 of Directive 2002/58/EC permits the adoption of legislative measures allowing, under certain conditions, retention of data for the purposes of the prevention, investigation, detection or prosecution of crime and criminal offences. This Framework Decision is not related to other objectives set out in Article 5 of this Directive and therefore does not provide for rules on data retention for the purpose of safeguarding national security (i.e. State Security), defence and public security. Nor is it related to the unauthorised use of the electronic communication system when such use does not constitute a criminal offence. 8. Many Member States have passed legislation concerning a priori retention of data for the purposes of prevention, investigation, detection or prosecution of crime and criminal offences. Work in this area is under way in other Member States. The content of this legislation varies considerably between Member States. 9. The differences between the legislation in Member States is prejudicial to co-operation between the competent authorities in the investigation, detection and prosecution of crime and criminal offences. To ensure effective police and judicial co-operation in criminal matters, it is therefore necessary to ensure that all Member States take the necessary steps to retain certain types of data for a length of time within set parameters for the purposes of investigating, detecting and prosecuting crime and criminal offences including terrorism. Such data should be available to other Member States in accordance with the instruments on judicial co-operation in criminal matters adopted under Title VI of the Treaty on European Union. This should also include instruments which were not adopted under this Title but which have been acceded to by the Member States and to which references are made in the instruments on judicial co-operation in criminal matters adopted under Title VI of the Treaty on European Union. 2894//05 REV IM/he 9 9bis. In an area of freedom, security and justice, obligations upon Industry to retain data are justifiable only if necessary to preserve important interests within a democratic society. This necessity arises from the importance of analysing specific historic data in the investigation, detection and prosecution of terrorist crimes and other serious offences. Where that data may provide the only approach for an effective resolution of such crimes, its availability for a determined period of time may be reliably ensured only with a statutory storage obligation. 0. Such a priori retention of data and access to this data may constitute an interference in the private life of the individual. However, such an interference does not violate the international rules applicable with regard to the right to respect to privacy and the handling of personal data contained, in particular, in the European Convention on the Protection of Human Rights of 4 November 950, the Convention of the Council of Europe no.08 on the protection of persons in respect of the automated handling of personal data of 28 January 98, and the Directives 95/46/EC and 2002/58 EC where such interference is provided for by law and where it is appropriate, strictly proportionate to the intended purpose and necessary within
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