The Honourable Member raises questions related to the ‘impact assessment’ of the Data retention Directive. The answer that follows is based on the proposal for a directive of the Parliament and of the Council on the retention of data processed in connection with the provision of public electronic communication services and amending Directive 2002/58/EC⁽¹⁾ as amended by the Parliament in first reading on 14 December 2005 and which is in accordance with the positions expressed by the Council and the Commission. The text has, however, not been adopted yet.

An evaluation of the Data retention Directive will be made within three years after its implementation period.

In the short term, an impact assessment of the Data retention Directive will not provide any added value. Firstly, the Commission has already carried out an impact assessment with respect to its proposal for a Directive on the retention of telecommunications traffic data, which was published together with the proposal. That document provides for an assessment of the impact the different policy options would have in all likelihood, and provides the arguments which have led the Commission to adopt its proposal. This impact assessment was based on the best available information.

Secondly, an impact assessment cannot, at this stage, have an influence on the content of the legal instrument, given the fact that an agreement on the Directive has just been reached between the Council and the Parliament. This means that the legislative process at the European level is completed, and that an additional assessment of the impact of the instrument at the European level will not provide new elements. This is of course without prejudice to the possibility of Member States to carry out an impact assessment with respect to the national implementation of the directive, given the fact that the Directive does leave some elements of choice to the Member States in the national implementation process.

In conclusion, the evaluation of the directive will take account of its impact on economic operators and consumers, as well as take account of further developments in electronic communications technology. The Directive also provides for an obligation for the Commission to examine all observations communicated by the Member States or the Article 29 Data Protection Working Party. It is expected that further discussions on the issue will also have taken place within the group to be set up by the Commission and to be composed of law enforcement representatives, associations of the electronic communications industry, Parliament representatives and data protection authorities, including the European Data Protection Supervisor (see also Recital 14). It is not excluded in this context to publish a call for tenders with the aim to subcontract some of the tasks to be undertaken in the course of such an evaluation.

At the time of the evaluation, the Commission will be much better placed to consider the actual impact of the directive, and, if necessary, to propose solutions to address any issues which may arise out of its implementation, supported by the statistical data which will need to be gathered on the basis of the directive. Prior to this process, further discussions on the issue will also have taken place within the group to be set up by the Commission in line with the agreed Recital 14, which may also provide elements for consideration.

The Commission’s view is that the Data retention Directive is fully in line with fundamental rights in accordance with Article 8(2) of the European Convention on Human Rights and Articles 7 and 8 of the Charter of Fundamental Rights. If that had not been the case, the Commission would not have supported the adoption of this directive by the Parliament and the Council.

With respect to the relationship between the Data retention Directive and the Commission’s Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data⁽²⁾ referred to by the Honourable Member, the Commission is of the opinion that a good balance has been found between the need to assure that that Data retention Directive can find application in all areas falling under its scope, on one side, and the harmonisation requirements, on the other. The solution laid down in the directive means that obstacles for the internal market are avoided.

(1) COM(2005)438 final. (2) OJ L 281, 23.11.1995.