WRITTEN QUESTION E-2681/02

by Erik Meijer (GUE/NGL) to the Commission

(24 September 2002)

Subject: Conflict between the requirement to retain telecommunications traffic data and protection of privacy pursuant to Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms

1. Is the Commission aware of the view expressed by the Netherlands body for the protection of personal data, the College Bescherming Persoonsgegevens (CBP), formerly known as the Registratiekamer, in the Netherlands newspaper Staatscourant of 5 September 2002 that the imposition of a general requirement to retain telecommunications traffic data for a year or more, which was made possible by Directive No 2002/58/EC(1) concerning the processing of personal data and the protection of privacy in the electronic communications sector adopted following its second reading by Parliament at the end of May is inadmissible?

2. Has it also noted the reference by the CBP to the view repeatedly voiced by guardians of privacy in Europe that the requirement to retain traffic data for a year or more infringes the right to respect for privacy? What is the Commission's view?

3. Has it also noted the CBP's view that a general requirement to retain traffic data contravenes the obligation to respect privacy as laid down in Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR)?

4. Can it confirm that this requirement to retain traffic data contravenes the said article of the ECHR, all the more so as it does not depend on a prior accusation or a particular court order to conduct an investigation?

5. Can the Commission confirm that, through Articles 52(3) and 53 of the Charter of Fundamental Rights of the European Union proclaimed in December 2000 in Nice, the European Union established a link with the ECHR adopted on 4 November 1950 under the responsibility of the Council of Europe and last amended on 11 May 1994, which means that EU legislation should be in accordance with this Convention?

6. What implications should the incompatibility with human rights previously laid down, including the protection of privacy, have for the plans currently being developed by the Council for a requirement for the general storing of traffic data in data communications?

(1) OJ L 201, 31.7.2002, p. 37.

Answer given by Mr Liikanen on behalf of the Commission

(13 November 2002)

1. The Commission is closely involved in the ongoing discussion about the compatibility of general traffic data retention requirements with the European Convention on Human Rights and the European Union Charter of Fundamental Rights. In this context, the Commission is aware of positions taken by national data protection authorities.

2. and 3. Throughout the co-decision procedure leading up to the adoption of Directive 2002/58/EC of the 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(1), the Commission has defended the view that the general obligation to erase traffic data when they are no longer needed for the provision of the communication service or for billing purposes, must be maintained. However, the existing margin for Member States to restrict rights and obligations under the Directive where this is necessary for public security, national security defence and the prevention, investigation, detection and prosecution of criminal offences also remains in place, subject to the conditions now explicitly set out in the same Directive (legislative measure, necessity, appropriateness and proportionality in a democratic society, limitation in time).

5. The Commission agrees with the need to ensure conformity with the above mentioned Convention.

4. and 6. Incompatibility between any particular traffic data retention measure and the human rights which the Union is committed to respect, is not a foregone conclusion. The Commission is currently conducting a legal analysis of the compatibility of traffic data retention measures with various legal instruments, including those referred to in the question. Whether Member States can impose general traffic data retention requirements on providers of communications services under the European Convention on Human Rights and if so, in which form and subject to which safeguards, remains to be seen since there is as yet no case law from the Court of the European Convention on Human Rights or indeed the Court of Justice on this specific matter.

(1) OJ L 201, 31.7.2002.