The Commission has already dealt with the issue of the FRA law in Sweden in its answer to written questions P‑3514/08 by Mr Hamon, E‑3865/08 by Mr Alvaro and E‑4232/08 by Mr Cappato[1]. In addition, the Commission informs the Honourable Members of the following:

According to Article 6 of the Treaty on the European Union the Union shall respect fundamental rights as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms as principles which are common to all the Member States.

The protection of privacy and personal data is based on Article 8 of the European Convention of Human Rights and Fundamental Freedoms and the ensuing jurisprudence of the European Court of Human Rights, as well as on the Council of Europe Convention of 28 January 1981 for the Protection of Individuals with Regard to Automatic Processing of Personal Data (Convention 108) and its Additional Protocol (ETS 181). The fundamental rights to privacy and to the protection of personal data are laid down in Articles 7 and 8 of the EU Charter of Fundamental Rights.

According to the jurisprudence of the European Court of Justice and the European Court on Human Rights, the processing of personal data by national public authorities, including a national intelligence agency, by intercepting any form of electronic communication, constitutes in itself an interference with the fundamental right to privacy and the protection of personal data.

The Commission understands that the Swedish authorities argue that the restrictions of fundamental rights based on this law are justified in the interest of national security. National measures aimed at safeguarding national security fall primarily within the responsibilities of Member States. With regard to obligations on providers of electronic communications networks and services, Article 15 of Directive 2002/58/EC[2] on privacy and electronic communications allows for certain restrictions to be applied to the principle of confidentiality of electronic communications as laid down by Article 5 of that directive, insofar as they are laid down in national legislation and constitute a necessary, appropriate and proportionate measure within a democratic society to safeguard inter alia national security.

The Commission will continue to follow this issue and take appropriate action, should the need arise.

• [1] http://www.europarl.europa.eu/QP-WEB/application/home.do?language=EN.
• [2] Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications); OJ L 201, 31.7.2002.