European Parliament must reject dangerous replacement of amendment 138

The conciliation phase for the “Telecoms Package” began informally two weeks ago. As you know, a contentious amendment – referred to as “amendment 138” – is now the only point of disagreement between the co-legislators. It has already been refused twice, with no official justification, by the Council of the European Union, while it was adopted twice by 88% of the members of the Parliament.

This amendment states that “no restriction may be imposed on the fundamental rights and freedoms of end-users, without a prior ruling by the judicial authorities”. This principle has since been confirmed by the French Constitutional Council, who said in a recent decision than no one other than the judiciary authority can restrict the freedom of expression and communication that is now put in practice through the free access to the Internet. Also, the fundamental rights status of access to the Internet has, in fact, also been accepted by the Council in the form of a recital, according to which restrictions on access to the Internet must be conform with the European Convention on Human Rights.

However, last week the Commission proposed – at the request of the Council – a worrying “compromise” drafting. The proposal’s first paragraphs disregards users’ rights and the principle of a prior ruling by a judge, while the second provides that the right to a due process, which is crucial to preserve justice in a democracy, could be limited “in order to assure national security, defence, public security, and the prevention, investigation, detection, and prosecution of criminal offences“.

Apparently influenced by political factors, the Parliament’s legal services have abusively argued that amendment 138 exceeds the Parliament’s powers, and falsely suggested that the Council’s proposal was as equally protective of fundamental rights as the original amendment. If the European Parliament followed this opinion in order to accommodate the Member States’ criticisms, it would create a dangerous precedent and lastingly weakens the powers of the Parliament as a co-legislator. But it needs not be that way. If adaptations are necessary to make amendment 138 consistent with the European Court of Justice jurisprudence, in no case must they lower the level protection of fundamental rights ³More arguments can be found at: http://j.mp/memo138dbk.

It is time for the Council to stop its attacks on European citizens’ freedoms so that the Parliament can finally work constructively to perfect the wording of amendment 138, while preserving its core principle. The Parliament’s delegation could propose to depart from amendment 138 to narrow down its scope. For instance, “fundamental rights and freedoms”, as it stands in amendment 138 could be narrowed down. Also, both institutions could agree on referring to the European Convention on Human Rights rather than the Charter of Fundamental rights to which not all Member States are subjected.

The European Union should guarantee its traditional legal principles by ensuring that the nascent Internet regulation across Member States will not be passed at the expense of rights and freedoms guaranteed by Community law. It belongs in the Telecoms Package more than anywhere else to install a common framework that makes certain that any citizen or company in Europe is in position to communicate and participate, to innovate and compete. Such a framework should protect fundamental rights, without which there is no single market and no open society.

Sincerely,

Philippe Aigrain, Gérald Sédrati-Dinet, Benjamin Sonntag, Jérémie Zimmermann
Co-founders of citizen advocacy group La Quadrature du Net