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RECOMMENDATION FOR SECOND READING     ***II
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22 April 2002
PE 311.019 A5-0130/2002
on the Council common position for adopting a European Parliament and Council directive concerning the processing of personal data and the protection of privacy in the electronic communications sector
(15396/2/2001 – C5‑0035/2002 – 2000/0189(COD))
Committee on Citizens' Freedoms and Rights, Justice and Home Affairs
Rapporteur: Marco Cappato
PROCEDURAL PAGE
 DRAFT LEGISLATIVE RESOLUTION

PROCEDURAL PAGE

At the sitting of 13 November 2001 Parliament adopted its position at first reading on the proposal for a European Parliament and Council directive concerning the processing of personal data and the protection of privacy in the electronic communications sector (COM(2000) 385 - 2000/0189 (COD)).

At the sitting of 6 February 2002 the President of Parliament announced that the common position had been received and referred to the Committee on Citizens' Freedoms and Rights, Justice and Home Affairs (15396/2/2001 - C5-0035/2002).

The committee had appointed Marco Cappato rapporteur at its meeting of 29 August 2000.

It considered the common position and draft recommendation for second reading at its meetings of 19 February, 19 March and 18 April 2002.

At the last meeting it adopted the draft legislative resolution by 36 votes to 6, with no abstentions.

The following were present for the vote: Ana Palacio Vallelersundi, chairman; Lousewies van der Laan and Giacomo Santini, vice-chairmen; Marco Cappato, rapporteur; Roberta Angelilli, Maria Berger (for Adeline Hazan), Hans Blokland (for Ole Krarup, pursuant to Rule 153(2)), Alima Boumediene-Thiery, Kathalijne Maria Buitenweg (for Heide Rühle), Michael Cashman, Carmen Cerdeira Morterero, Ozan Ceyhun, Carlos Coelho, Thierry Cornillet, Gianfranco Dell'Alba (for Mario Borghezio, pursuant to Rule 153(2)), Gérard M.J. Deprez, Giuseppe Di Lello Finuoli, Francesco Fiori (for Marcello Dell'Utri, pursuant to Rule 153(2)), Pernille Frahm (for Fodé Sylla, pursuant to Rule 153(2)), Jorge Salvador Hernández Mollar, Pierre Jonckheer, Margot Keßler, Eva Klamt, Jean Lambert (for Patsy Sörensen), Baroness Sarah Ludford, Hartmut Nassauer, William Francis Newton Dunn, Arie M. Oostlander (for Bernd Posselt), Elena Ornella Paciotti, Paolo Pastorelli (for Giuseppe Brienza), Hubert Pirker, Martine Roure, Gerhard Schmid, Olle Schmidt (for Francesco Rutelli), Ilka Schröder, The Earl of Stockton (for Mary Elizabeth Banotti), Joke Swiebel, Anna Terrón i Cusí, Maurizio Turco, Jaime Valdivielso de Cué (for The Lord Bethell, pursuant to Rule 153(2)), Gianni Vattimo (for Sérgio Sousa Pinto), Christian Ulrik von Boetticher, Christos Zacharakis (for Charlotte Cederschiöld) and Olga Zrihen Zaari (for Martin Schulz).

The recommendation for second reading was tabled on 22 April 2002.

The deadline for tabling amendments will be indicated in the draft agenda for the relevant part-session.


DRAFT LEGISLATIVE RESOLUTION

European Parliament legislative resolution on the Council common position for adopting a European Parliament and Council directive concerning the processing of personal data and the protection of privacy in the electronic communications sector (15396/2/2001 – C5‑0035/2002 – 2000/0189(COD))

(Codecision procedure: second reading)

The European Parliament,

–   having regard to the Council common position (15396/2/2001 – C5‑0035/2002),

–   having regard to its position at first reading(1) on the Commission proposal to Parliament and the Council (COM(2000) 385(2)),

–   having regard to Article 251(2) of the EC Treaty,

–   having regard to Rule 80 of its Rules of Procedure,

–   having regard to the recommendation for second reading of the Committee on Citizens' Freedoms and Rights, Justice and Home Affairs (A5‑0130/2002),

1.   Amends the common position as follows;

2.   Requests the Commission to examine how a coherent approach towards the protection of privacy, preservation, interception and processing personal data could be achieved and to make the appropriate proposal to the European Parliament by (one year’s time) at the latest.

3.   Instructs its President to forward its position to the Council and Commission.

Council common position   Amendments by Parliament
Amendment 36
Recital 2a (new)
 

2a.   whereas the three-pillar structure of the EU and EC Treaties and the different divisions of competence within each of these pillars may hamper the effective protection of the fundamental human right to privacy as guaranteed by the European Convention on Human Rights and by the European Union Charter of Fundamental Rights;

Justification

Self-explanatory.

Amendment 2
Recital 11

(11)   Like Directive 95/46/EC, this Directive does not address issues of protection of fundamental rights and freedoms related to activities which are not governed by Community law. Therefore it does not alter the existing balance between the individual's right to privacy and the possibility for Member States to take such measures, as are referred to in Article 15(1) of, necessary for the protection of public security, defence, State security (including the economic well-being of the State when the activities relate to State security matters) and the enforcement of criminal law. Consequently, this Directive does not affect the ability of Member States to carry out lawful interception of electronic communications or take other measures, if necessary for any of these purposes and in accordance with the European Convention of Human Rights and Fundamental Freedoms. Such measures must be appropriate, strictly proportionate to the intended purpose and necessary within a democratic society.

(11)   Like Directive 95/46/EC, this Directive addresses issues of protection of fundamental rights and freedoms, related to activities which are governed by Community law. In taking measures for the protection of public security, defence and State security (including the economic well-being of the State when the activities relate to State security matters) and for the enforcement of criminal law, and in carrying out lawful interception of electronic communications if necessary for any of these purposes, Member States should act on the basis of a specific law which is comprehensible to the general public, and the measures should be entirely exceptional, authorised by the judicial or other competent authorities on a case-by-case basis and for a limited duration, appropriate, proportionate and necessary within a democratic society. Under the European Convention on Human Rights and pursuant to rulings issued by the European Court of Human Rights, any form of wide-scale general or exploratory electronic surveillance is prohibited.

(Reinstates Amendment 4 at first reading A5-0374/2001)

Justification

Recalls the principles spelled out by the European Court of Human Rights in its jurisprudence on privacy and the considerations of the Art. 29 Working Party on the protection of privacy.

Amendment 3
Recital 21

(21)   Measures should be taken to prevent unauthorised access to communications in order to protect the confidentiality of communications, including both the contents and any data related to such communications, by means of public communications networks and publicly available electronic communications services. National legislation in some Member States only prohibits intentional unauthorised access to communications.

(21)   Measures should be taken to prevent unauthorised access to communications in order to protect the confidentiality of communications, including both the contents and any data related to such communications, by means of public communications networks and publicly available electronic communications services. These measures should include the facilitation of proven cryptography and anonymisation or pseudonymisation tools.

(Reinstates Amendment 6 at first reading A5-0374/2001)

Justification

Effective protection cannot rely on legal measures only, whatever their scope. The general availability of adequate tools must be ensured.

Amendment 4
Recital 25

(25)   However, such devices, for instance so-called "cookies", can be a legitimate and useful tool, for example, in analysing the effectiveness of web-site design and advertising, and in verifying the identity of users engaged in on-line transactions. Where such devices, for instance cookies, are intended for a legitimate purpose, such as to facilitate the provision of information society services, their use should be allowed on condition that clear and precise prior information about the purposes of cookies or similar devices is provided by the operator of a website sending such devices or allowing third parties to send them via his website. The website operator should also give users at least the opportunity to refuse to have a cookie or similar device stored on their terminal equipment. Information and the right to refuse may be offered once for the use of various devices to be installed on the user's terminal equipment during the same connection and also covering any further use that may be made of those devices during subsequent connections. The methods for giving information, offering a right to refuse or requesting consent should be made as user friendly as possible. Access to specific website content may still be made conditional on the well-informed acceptance of a cookie or similar device, if it is used for a legitimate purpose.

(25)   However, such devices, for instance so-called "cookies", can be a legitimate and useful tool, for example, in analysing the effectiveness of web-site design and advertising, and in verifying the identity of users engaged in on-line transactions. Where such devices, for instance cookies, are intended for a legitimate purpose, such as to facilitate the provision of information society services, their use should be allowed on condition that users and subscribers have access to clear and precise information about the purposes of cookies or similar devices ensuring that the user is aware of information being placed on the terminal equipment he is using. Users should have the opportunity to refuse to have a cookie or similar device stored on their terminal equipment. This is particularly important in view of situations where others than the original user have access to the terminal equipment and thereby to any data containing privacy-sensitive information stored on such equipment. Information and the right to refuse may be offered once for the use of various devices to be installed on the user's terminal equipment during the same connection and also covering any further use that may be made of those devices during subsequent connections. The methods for giving information, offering a right to refuse or requesting consent should be made as user friendly as possible. Access to specific website content may still be made conditional on the well-informed acceptance of a cookie or similar device, if it is used for a legitimate purpose.

Justification

Cookies are legitimate tools which serve a range of useful purposes. By enabling website functions, cookies enhance surfing experience and provide for effective web services. Clear and comprehensive information will enable consumers to make an informed choice. In addition, the means to accept and/or reject cookies already exist in most browser software. Consequently, the obligation for website operators to provide this possibility is superfluous. Nevertheless, some cookies contain very sensitive information such as credit card numbers, passwords and even the full name of a user without any protection against unauthorised access. The vast majority of users are completely unaware of cookies being planted on the PC they are using and therefore do not know that such sensitive information is left on semi-public PCs open to abuse for any other user of the same PC.

Amendment 5
Recital 28

(28)   The obligation to erase traffic data or to make such data anonymous when it is no longer needed for the purpose of the transmission of a communication does not conflict with such procedures on the Internet as the caching in the Domain Name System of IP-addresses or the caching of IP-addresses to physical address bindings or the use of log in information to control the right of access to networks or services.

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Justification

No similar text was in the Commission proposal or in the EP first reading text. The meaning and aims of this recital added by the Council are rather unclear and confusing.

Amendment 6
Recital 38

(38)   Directories of subscribers to electronic communications services are widely distributed and public. The right to privacy of natural persons and the legitimate interest of legal persons require that subscribers are able to determine whether their personal data are published in a directory and if so, which. Providers of public directories should inform the subscribers to be included in such directories of the purposes of the directory and of any particular usage which may be made of electronic versions of public directories especially through search functions embedded in the software, such as reverse search functions enabling users of the directory to discover the name and address of the subscriber on the basis of a telephone number only.

(38)   Directories of subscribers to electronic communications services are widely distributed and publicly available. The right to privacy of natural persons and the legitimate interest of legal persons require that subscribers should be entitled, free of charge, to be omitted at their request or to determine the extent to which their personal data are published in a directory.

(Reinstates Amendment 16 at first reading A5-0374/2001)

Justification

Keeps the current opt-out system on public directories, that gives the right to subscribers to be omitted or to have some personal data omitted from a directory on request; introduces the fact that this operation has to be free of charge for the subscriber.

Amendment 7
Recital 40

(40)   Safeguards should be provided for subscribers against intrusion of their privacy by unsolicited communications for direct marketing purposes in particular by means of automated calling machines, telefaxes, and e-mails, including SMS messages. These forms of unsolicited commercial communications may on the one hand be relatively easy and cheap to send and on the other may impose a burden and/or cost on the recipient. Moreover, in some cases their volume may also cause difficulties for electronic communications networks and terminal equipment. For such forms of unsolicited communications for direct marketing, it is justified to require that prior explicit consent of the recipients is obtained before such communications are addressed to them. The single market requires a harmonised approach to ensure simple, Community-wide rules for businesses and users.

(40)   Safeguards should be provided for subscribers against intrusion of their privacy by means of unsolicited calls, telefaxes, electronic mails and other forms of communications for direct marketing purposes. Member States may limit such safeguards to subscribers who are natural persons.

(see recital 21 of COM(2000) 385)

Justification

This amendment reintroduces recital 21 of the Commission text concerning unsolicited communications. This text is neutral in respect of the (opt-out or opt-in) system adopted for the different means of communication, and can help in the perspective of finding compromises with the Council.

Amendment 8
Recital 41

(41)   However, within the context of an existing customer relationship, it is reasonable to allow the use of electronic contact details for the offering of similar products or services as those originally purchased by the customer, but only by the same company that has obtained the contact details directly from the customer. When contact details are obtained, the customer should be informed about their further use for direct marketing in a clear manner, and be given the opportunity to refuse such usage. This opportunity should continue to be offered with each subsequent direct marketing message, free of charge, except for any costs for the transmission of this refusal.

(41)   However, within the context of an existing customer relationship, it is reasonable to allow the use of electronic contact details for the offering of products or services, but only by the same company that has obtained the contact details directly from the customer. When contact details are obtained, the customer should be informed about their further use for direct marketing in a clear manner, and be given the opportunity to refuse such usage. This opportunity should continue to be offered with each subsequent direct marketing message, free of charge, except for any costs for the transmission of this refusal.

Justification

The amendment endorses the Council text with a slight modification: the notion of "similar" products is too vague.

Amendment 9
Recital 44

(44)   Direct marketing activities carried out by political, charity or other organisations, for instance activities aimed at recruiting new members, fund raising or lobbying for votes, are included in the concept of direct marketing as established by Directive 95/46/EC. Messages by political organisations or others for purposes other than direct marketing, for example the expression of views, thoughts and ideas, are not covered by the provisions on unsolicited communications of this Directive.

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Justification

This recital has been added by the Council and was not in the Commission or the EP text. The distinction introduced between direct marketing activities ("aimed at recruiting new members, fund raising or lobbying for votes") and other activities ("expression of views, thoughts and ideas") is artificial because these activities – that are at the basis of and a reason for the existence of associations, charities and parties - are intermingled and linked between each other.

Amendment 10
Article 1, paragraph 3

3.   This Directive shall not apply to activities which fall outside the scope of the Treaty establishing the European Community, such as those covered by Titles V and VI of the Treaty on European Union, and in any case to activities concerning public security, defence, State security (including the economic well-being of the State when the activities relate to State security matters) and the activities of the State in areas of criminal law.

3.   This Directive shall not apply to activities which fall outside the scope of the EC Treaty.

(Reinstates Amendment 18 at first reading A5-0374/2001)

Justification

Amendment 11
Article 5, paragraph 3

3.   Member States shall ensure that the use of electronic communications networks to store information or to gain access to information stored in the terminal equipment of a subscriber or user is only allowed on condition that the subscriber or user concerned receives in advance clear and comprehensive information, inter alia about the purposes of the processing, in accordance with Directive 95/46/EC, and is offered the right to refuse such processing by the data controller. This shall not prevent any technical storage or access for the sole purpose of carrying out or facilitating the transmission of a communication over an electronic communications network, or as strictly necessary in order to provide an information society service explicitly requested by the subscriber or user.

3.   Member States shall ensure that the use of electronic communications networks to store information or to gain access to information stored in the terminal equipment of a subscriber or user is only allowed on condition that the subscriber or user concerned has access to clear and comprehensive information, inter alia about the purposes of the processing and is offered the right to refuse such processing by the data controller. This shall not prevent any technical storage or access for the sole purpose of carrying out or facilitating the transmission of a communication over an electronic communications network, or as strictly necessary in order to provide an information society service explicitly requested by the subscriber or user.

Justification

Cookies are legitimate tools which serve a range of useful purposes. By enabling website functions, cookies enhance surfing experience and provide for effective web services. Clear and comprehensive information will enable consumers to make an informed choice. In addition, the means to accept and/or reject cookies already exist in most browser software. Consequently, the obligation for website operators to provide this possibility is superfluous. Nevertheless, some cookies contain very sensitive information such as credit card numbers, passwords and even the full name of a user without any protection against unauthorised access. The vast majority of users are completely unaware of cookies being planted on the PC they are using and therefore do not know that such sensitive information is left on semi-public PCs open to abuse for any other user of the same PC.

Amendment 12
Article 6, paragraph 1

1.   Traffic data relating to subscribers and users processed and stored by the provider of a public communications network or publicly available electronic communications service must be erased or made anonymous when it is no longer needed for the purpose of the transmission of a communication without prejudice to paragraphs 2, 3, 5 of this Article and Article 15(1).

1.   Traffic data relating to subscribers and users processed for the purpose of the transmission of a communication and stored by the provider of a public communications network or service must be erased or made irreversibly anonymous upon completion of the transmission, with due regard for the requirements of paragraphs 2, 3 and 4, and so as to allow paragraph 6 to be properly implemented.

(Reinstates Amendment 27 at first reading A5-0374/2001)

Justification

The reference to Art. 15 (1), that was not in the Commission text nor in the EP text, shall be deleted.

Amendment 13
Article 12, paragraph 1

1.   Member States shall ensure that subscribers are informed, free of charge, about the purpose(s) of printed or electronic directories of subscribers available to the public or obtainable through directory enquiry services, in which their personal data can be included and of any further usage possibilities based on search functions embedded in electronic versions of the directory.

1.   Member States shall ensure that subscribers are informed, free of charge and before they are included in the directory, about the purpose(s) of a printed or electronic directory of subscribers available to the public or obtainable through directory enquiry services, in which their personal data can be included and of any further usage possibilities based on search functions embedded in electronic versions of the directory.

(Reinstates Amendment 33 at first reading A5-0374/2001)

Justification

EP first reading amendment concerning information to be provided to subscribers before they are included in a directory.

Amendment 14
Article 12, paragraph 2

2.   Member States shall ensure that subscribers are given the opportunity, to determine whether their personal data are included in a public directory, and if so, which, to the extent that such data are relevant for the purpose of the directory as determined by the provider of the directory, and to verify, correct or withdraw such data. Not being included in a public subscriber directory, verifying, correcting or withdrawing personal data from it shall be free of charge.

2.   Personal data contained in printed or electronic directories of subscribers available to the public or obtainable through directory enquiry services shall be limited to what is necessary to identify a particular subscriber, unless the subscriber has given his unambiguous consent to the publication of additional personal data. The subscriber shall be entitled, free of charge, to be omitted from a printed or electronic directory at his or her request, to determine which data may be listed, to verify, correct or withdraw such data, to indicate that his or her personal data may not be used for the purpose of direct marketing, to have his or her address omitted in part and not to have a reference revealing his or her sex, where this is applicable linguistically.

(Reinstates Amendment 34 at first reading A5-0374/2001)

Justification

Keeps the current opt-out system on public directories, that gives the right to subscribers to be omitted or to have some personal data omitted from a directory on request; introduces the fact that this operation has to be free of charge for the subscriber.

Amendment 15
Article 13, paragraph 1

1.   The use of automated calling systems without human intervention (automatic calling machines), facsimile machines (fax) or electronic mail for the purposes of direct marketing may only be allowed in respect of subscribers who have given their prior consent.

1.   The use of automated calling systems without human intervention (automatic calling machines), facsimile machines (fax) or SMS (short message service available on mobile phones) for the purpose of direct marketing may be only allowed in respect of subscribers who have given their prior consent.

(Reinstates Amendment 35 at first reading A5-0374/2001)

Justification

EP first reading amendment on the means of communication falling in the opt-in regime when used for direct marketing. Excludes electronic mail while including SMS.

Amendment 16
Article 13, paragraph 2

2.   Notwithstanding paragraph 1, where a natural or legal person obtains electronic contact details for electronic mail directly from its customers, in the context of the purchase of a product or a service, in accordance with Directive 95/46/EC, the same natural or legal person may use these electronic contact details for direct marketing of its own similar products or services, provided that customers clearly and distinctly are given the opportunity to object, free of charge and in an easy manner, to such use of electronic contact details when they are collected and on the occasion of each message where the customer has not initially refused such use.

2.   Where a natural or legal person obtains electronic contact details for electronic mail directly from its customers, in the context of the purchase of a product or a service, in accordance with Directive 95/46/EC, the same natural or legal person may use these electronic contact details for direct marketing of its own products or services, provided that customers clearly and distinctly are given the opportunity to object, free of charge and in an easy manner, to such use of electronic contact details when they are collected and on the occasion of each message where the customer has not initially refused such use. As from 30 months after the entry into force of this Directive, subscribers shall have the right to ask providers of electronic communications services to use technical solutions which allow them to view the sender and subject line of electronic mails, and also to delete them, without having to download the rest of the electronic mail's content or any attachments.

Justification

The amendment endorses the Council text with a slight modification: the notion of "similar" product is too vague.

Amendment 17
Article 13, paragraph 3

3.   Member States shall take appropriate measures to ensure that, free of charge, unsolicited communications for purposes of direct marketing, by means other than those referred to in paragraph 1, are not allowed either without the consent of the subscribers concerned or in respect of subscribers who do not wish to receive these communications, the choice between these options to be determined by national legislation.

3.   Member States shall take appropriate measures to ensure that, free of charge, unsolicited communications for purposes of direct marketing, by means and practices other than those referred to in the previous paragraphs, are not allowed either without the consent of the subscribers concerned or in respect of subscribers who do not wish to receive these communications, the choice between these options to be determined by national legislation.

Justification

This amendment is required in order to achieve the purposes of this new directive. The directive leaves Member States a national choice as regards the treatment only of those unsolicited communications for which there is no specific regime under the directive. Such a regime is now laid down for certain types of electronic communications both in Article 13, paragraph 1 (“opt-in”) and in Article13, paragraph 2 (“soft opt-in”, as proposed by Parliament and endorsed, in essence, by the Council). To allow Member States to deviate from these rules would lead to a fragmentation of the internal market, create further legal uncertainty and thus remove the regulatory justification for Article 13, paragraphs 1 and 2. Therefore, Article 13, paragraph 3 can only apply to those electronic communications which are not harmonised by the previous paragraphs.

Amendment 18
Article 13, paragraph 6

6.   The Commission shall submit to the European Parliament and the Council, not later than three years after the date of application of this Directive referred in Article 17(1) by Member States, a report on the effects on consumers and economic operators of this Article, taking into account the international environment. Where appropriate, the Commission shall submit proposals for the amendment of this provision to take account of the results of the abovementioned report and any changes in the sector and any other proposal it may deem necessary.

delete

Justification

The EP adopted at its first reading an amendment that asked the Commission to draft a report on the implementation of the whole directive. The Council has restricted the scope of the abovementioned report only to the aspects linked to Article 13. It is necessary to delete this provision and reintroduce the relevant EP first reading text after Article 18.

Amendment 19
Article 14, paragraph 3

3.   Where required, the Commission shall adopt measures to ensure that terminal equipment is constructed in a way that is compatible with the right of users to protect and control the use of their personal data, in accordance with Directive 1999/5/EC of the European Parliament and of the Council of 9 March 1999 on radio equipment and telecommunications terminal equipment and the mutual recognition of their conformity(1) and Council Decision 87/95/EEC of 22 December 1986 on standardisation in the field of information technology and communications(2)

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(1)   OJ L 91, 7.4.1999, p. 10.

(2)   OJ L 36, 7.2.1987, p. 31. Decision as last amended by the 1994 Act of Accession.

3.    As concerns arise with categories of products, measures may be adopted where necessary to ensure that terminal equipment is constructed in a way that is compatible with the right of users to protect and control the use of their personal data, in accordance with Directive 1999/5/EC of the European Parliament and of the Council of 9 March 1999 on radio equipment and telecommunications terminal equipment and the mutual recognition of their conformity(1) and Council Decision 87/95/EEC of 22 December 1986 on standardisation in the field of information technology and communications(2).

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(1)   OJ L 91, 7.4.1999, p. 10.

(2)   OJ L 36, 7.2.1987, p. 31. Decision as last amended by the 1994 Act of Accession.

(Reinstates Amendment 36 at first reading A5-0374/2001)

Justification

This amendment reintroduces EP first reading text in order to clarify when the Commission shall intervene to impose technical standards.

Amendment 20
Article 15, paragraph 1

1.   Member States may adopt legislative measures to restrict the scope of the rights and obligations provided for in Article 5, Article 6, Article 8(1)(2)(3) and (4), and Article 9 of this Directive when such restriction constitutes a necessary measure to safeguard national security, (i.e. State security) defence, public security or the prevention, investigation, detection and prosecution of criminal offences or of unauthorised use of the electronic communications system, as referred to in Article 13(1) of Directive 95/46/EC. To this end Member States may inter alia provide for the retention of data for a limited period justified on the grounds laid down in this paragraph, in accordance with the general principles of Community law.

1.   Member States may adopt legislative measures to restrict the scope of the rights and obligations provided for in Article 5, Article 6, Article 8(1)(2)(3) and (4), and Article 9 of this Directive when such restriction constitutes a necessary, appropriate, proportionate and temporary measure within a democratic society to safeguard national security, defence, public security, the prevention, investigation, detection and prosecution of criminal offences or of unauthorised use of the electronic communication system, as referred to in Article 13(1) of Directive 95/46/EC. These measures shall be entirely exceptional and based on a specific law which is comprehensible to the general public, and shall be authorised by the judicial or other competent authorities on a case-by-case basis. Under the European Convention on Human Rights and the EU Charter of Fundamental Rights and pursuant to rulings issued by the European Court of Human Rights, any form of widespread general or exploratory electronic surveillance is prohibited.

Justification

Along with the references to the ECHR and the related case law, the EU Charter of Fundamental Rights should be mentioned.

Amendment 21
Article 15, paragraph 3

3.   The Working Party on the Protection of Individuals with regard to the Processing of Personal Data instituted by Article 29 of Directive 95/46/EC shall also carry out the tasks laid down in Article 30 of that Directive with regard to matters covered by this Directive, namely the protection of fundamental rights and freedoms and of legitimate interests in the electronic communications sector.

3.   The Working Party on the Protection of Individuals with regard to the Processing of Personal Data instituted by Article 29 of Directive 95/46/EC shall also carry out the tasks laid down in Article 30 of that Directive with regard to matters covered by this Directive, namely the protection of fundamental rights and freedoms and of legitimate interests in the electronic communications sector. The Working Party shall give interested parties the opportunity to comment within a reasonable time-frame and shall take their views into full account.

(Reinstates Amendment 38 at first reading A5-0374/2001)

Justification

Possible compromise between EP first reading amendment and the Council text.

Amendment 22
Article 16, paragraph 2

2.   Where the personal data of subscribers to fixed public voice telephony services have been included in a public subscriber directory in conformity with the provisions of Article 11 of Directive 97/66/EC before the national provisions adopted in pursuance of this Directive enter into force, the personal data of such subscribers may remain included in this public directory in its printed or electronic versions, unless subscribers indicate otherwise, after having received complete information about purposes and options in accordance with Article 12 of this Directive.

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Justification

No transitional arrangement is needed if the current opt-out system on directories is kept in the EP second reading recommendation.

Amendment 23
Article 18a (new)
 

The Commission shall submit to the European Parliament and the Council, not later than three years after the date of application of this Directive, a report on its implementation, on its impact on economic operators and consumers, in particular as regards the provisions on unsolicited communications, and on measures taken by Member States according to Art. 15 (1). For this purpose, the Commission may request information from the Member states which shall be supplied without undue delay. Where appropriate, the Commission shall submit proposals to amend this Directive, taking account of the results of that report, any changes in the sector and any other proposal it may deem necessary in order to improve the effectiveness of this Directive.

(Reinstates Amendment 42 at first reading A5-0374/2001 with an addition)

Justification

The EP adopted at its first reading an amendment that asked the Commission to draft a report on the implementation of the whole directive. The Council has restricted the scope of the abovementioned report only to the aspects linked to Article 13. It is necessary to delete this provision and reintroduce the relevant EP first reading text.

(1)Texts Adopted, 13.11.2001, Item 6.
(2)OJ C C 365, 19.12.2000, p. 223.

Last updated: 21 May 2002Legal notice