COMMISSION OF THE EUROPEAN COMMUNITIES 
Brussels, 05.03.1997 
COM(97) 94 final - COD 288 
OPINION OF THE COMMISSION 
pursuant to Article 189 b (2) (d) of the EC Treaty, 
on the European Parliament's amendments 
to the Council's common position regarding the 
proposal for a 
EUROPEAN PARLIAMENT AND COUNCIL DIRECTIVE 
concerning the 
processing of personal data and the protection of privacy in the telecommunications 
sector, in particular in the integrated services digital network (ISDN) and in the public 
digital mobile networks 
AMENDING THE PROPOSAL OF THE COMMISSION 
pursuant to Article 189 a (2) of the EC Treaty 

I. HACM.UOUNI) 
On 27 July 1990 the Commission presented a proposal for a Council Directive 
concerning the protection of personal data and privacy in the context of public digital 
telecommunications networks, in particular the integrated services digital network 
(ISDN) and public digital mobile networks (COM(90)314 final- SYN 288). This 
formed part of a package of measures including the proposal for a general data 
protection directive (Directive 95/46/EC on the protection of individuals with regards 
to the processing of personal data and the free movement of such data, approved on 24 
October 19951). 
The Economic and Social Committee adopted its opinion on the proposal on 24 April 
1991. 
In the framework of the co-operation procedure the European Parliament delivered its 
opinion on 1 1 March 1992 including a number of proposed amendments. 
In view of these amendments and taking due account of subsidiarity considerations, the 
Commission submitted by letter of 23 June 1994 an amended proposal for a European 
Parliament and Council Directive concerning the protection of personal data and 
privacy in the context of digital telecommunications networks, in particular the 
integrated services digital network (ISDN) and digital mobile networks (COM(94)128 
final COD 288 of 13.06.1994). 
The Council adopted its common position (EC No 57/96) on 12 September 19962 on 
which the Commission delivered it's opinion on 12 September 1996 (SEC (96)1605 
fin). 
In second reading, the European Parliament on 16 January 1997 proposed 11 
amendments to the common position. 
2. PlJRPOSK OK TIIK COMMISSION PROPOSAI, 
The proposal for a Directive (concerning the protection of personal data and privacy in 
the telecommunications sector, in particular the integrated services digital network 
(ISDN) and digital mobile networks ) intends to ensure the free movement of data and 
of telecommunications equipment and services in the Community by harmonising the 
level of protection of the processing of personal data in the telecommunications sector 
and of the legitimate interests of subscribers to public telecommunications services 
who are legal persons. 
The Directive will specify, for the telecommunications sector, the general rules as laid 
down by the general Directive on the processing of personal data and it will enhance 
1OJ L 281 of 23 November 1995, p 31 
2 OJ C 315 of 24 October 1996, p.30 
the protection of privacy of individuals and of the legitimate interests of subscribers to 
telecommunications services who are legal persons. 
In a rapidly expanding telecommunications sector it is of great importance that 
subscribers to public telecommunications services can rely on it that their 
communications and related data are safe and are not used for other purposes than 
those for which they were intended. A sound development of new telecommunications 
services depends to a great extent on consumer confidence. 
3. OPINION OF THE COMMISSION ON THE AMENDMENTS OF THE EUROPEAN 
PARLIAMENT 
Of the eleven amendments adopted by the European Parliament in second reading , 
seven can be accepted by the Commission, four cannot be supported. 
Amendments which can be accepted 
• Amendment 2 simplifies the title of the Directive and aligns it closer to its 
substance, which makes it a useful drafting clarification. 
• Amendment 3 changes the drafting of recital 7 on the issue of subsidiarity. The 
original text and the proposed amendment are not contradictory, they merely 
highlight different aspects of subsidiarity. 
• 
• Amendment 4 introduces a new recital on cooperation between all parties 
concerned to ensure that technologies are available to implement the guarantees 
offered by the Directive. Although care has been taken to draft the Directive in such 
a way that the privacy options required do not depend on the availability of any 
particular technology, the incentive to cooperate is a positive new element. 
Amendment 6 underlines that the comitology procedure cannot be used for changes 
of substance thus stating a matter of fact. 
Amendment 7 adds a useful cross reference to Article 5 which in its present drafting 
could lead to misunderstandings. 
Amendment 9 deletes the possibility for operators to charge subscribers for not 
having their particulars entered in the public directory. The Commission agrees with 
the Parliament that individual subscribers should not have to pay for the exercise of 
their right to privacy. 
Finally, Amendment 10 clarifies an element which was already implicitly included in 
the list in the Annex and is acceptable 
Amendments which cannot be accepted 
• Amendment 5 is problematic because it introduces a new concept namely 'the right 
to information of the user' which is not otherwise addressed by the Directive. The 
amendment interprets the possibility for Member States not to apply the article on 
directories to legal persons, as being limited to cases where they would need to 
oblige such legal persons to appear in the public directory in view of the right to 
information of the public. The scope of the paragraph was however intended 
differently Legal persons would not necessarily need to have all the options which 
are enumerated in paragraph 1 of article 11. Moreover, since in their case not the 
right to privacy but rather a legitimate interest would be concerned, such options 
would not necessarily need to be free of charge. 
• Amendment 8 is not acceptable because it contains a drafting error which would 
render article 9 to which it relates inapplicable. For this reason a corrected version 
of the same amendment had been submitted to the Plenary by one of the political 
groups, but it was not adopted. 
• Two related amendments (unnumbered) proposing the suppression of part of recital 
20 and of paragraph 3 of article 12 on unsolicited calls for marketing purposes. The 
Commission cannot accept these amendments which would result in an obligation to 
apply article 12 equally to natural and legal persons. There are valid reasons to 
accept a differentiated treatment for legal persons, who need not under all 
circumstances have to have the right to shield themselves from direct marketing 
calls. 
4. MODIFIED PROPOSAL 
On 12 September 1996 the Commission has adopted its opinion on the common 
position regarding a Directive of the European Parliament and the Council concerning 
the processing of personal data and the protection of privacy in the 
telecommunications sector, in particular in the integrated services digital network 
((ISDN) and in the public digital mobile networks, by which it accepted the revised 
text for the proposed Directive. 
Following the second reading of the draft Directive by the European Parliament, the 
Commission herewith modifies its proposal for a Directive including seven of the 
amendments which were adopted by the European Parliament on 16 January 1997 
With regard to three of the four amendments which the Commission cannot support, 
alternative proposals were already mentioned by the Commission during the debate in 
the European Parliament's plenary session on 15 January 1997 Instead of amendment 
8 the Commission proposes a text along the lines of amendment 12 (intended to 
correct amendment 8) and instead of the suppression of recital 20 and paragraph 3 of 
Article 12, the Commission proposes to add a clarification to paragraph 12.3. 
AMENDED PROPOSAL FOR 
A DIRECTIVE OF THE EUROPEAN PARLIAMENT AND THE COUNCIL 
CONCERNING THE PROCESSING OF PERSONAL DATA AND THE PROTECTION OF 
PRIVACY IN THE TELECOMMUNICATIONS SECTOR 
common position i une tided proposal 
Tiik 
(following amendment 2) 
Directive of the European Parliament and the Council Directive of the European Parliament and the Council 
concerning the processing of personal data and the protection concerning the processing of personal data and the 
of privacy in the telecommunications sector, protection of privacy in the telecommunications sector, 
in particular in the integrated services digital network 
(ISDN) and in the public digital mobile networks 
Recital 7 
(following amendment 3) 
Whereas legal, regulatory, and technical provisions 
adopted by the Member Slates concerning the protection 
of personal data, privacy and the legitimate interests of 
legal persons, in the telecommunications sector, must be 
harmonised in order lo avoid obstacles lo the internal 
market for telecommunications in conformity with the 
objective scl out in Article Xa of the Treaty; whereas the Whereas legal, regulatory, and technical provisions 
adopted by the Member States concerning the protection 
of personal data, privacy and the legitimate interests of 
legal persons, in the telecommunications sector, must be 
harmonised in order to avoid obstacles to the internal 
market for telecommunications in conformity with the 
objective set out in Article Xa of the Treaty; whereas the 
harmonisation pursuant lo the principle of subsidiarity is applicalion of the subsidiarity principle is not appropriate 
limited to requirements that are strictly necessary to 
guarantee that the promotion and development of new 
telecommunications services and networks between 
Member States will not be hindered. to harmonisation in the telecommunications sector 
because of the essentially transnational nature of 
telecommunications networks and services and, whereas, 
in any case, such harmonisation will have to guarantee 
that the promotion and development of new 
telecommunications services and networks between 
Member States arc not hindered; 
New Recital 7a 
(following amendment 4) 
Whereas the Member Stales, providers and users 
concerned, together with the competent Community 
bodies, must cooperate in introducing and developing the 
relevant technologies needed to apply the guarantees 
provided for by the provisions of this Directive; 
common position amended proposal 
Recital 23 
(following amendment 6) 
Whereas, given the technological developments and the Whereas, given the technological developments and the 
attendant evolution of the services on offer, it will be attendant evolution of the services on offer, it will be 
necessary technically to specify the categories of data necessary technically to specify the categories of data 
listed in the Annex lo this Directive for the application of listed in the Annex to this Directive for the application of 
Article 6 of this Directive with the assistance of the Article 6 of this Directive with the assistance of the 
Committee composed of representatives of the Member Committee composed of representatives of the Member 
States set up in Article 31 of Directive 95/46/EC in order States set up in Article 31 of Directive 95/46/EC in order 
to ensure a coherent application of the requirements set to ensure a coherent application of the requirements set 
out in this Directive regardless of changes in technology out in this Directive regardless of changes in technology, 
and bearing in mind that this procedure cannot apply to 
substantial changes in these categories of data, which may 
be undertaken only in accordance with the procedure laid 
down in Article 100A of the EC Treaty; 
Article 5 
(following amendment 7) 
Member States shall ensure via national regulations the 
confidentiality of communications by means of public 
telecommunications network and publicly available 
telecommunications services. In particular, they shall 
prohibit listening, tapping, storage or other kinds of Member States shall ensure via national regulations the 
confidentiality of communications by means of public 
telecommunications network and publicly available 
telecommunications services. In particular, they shall 
prohibit listening, tapping, storage or other kinds of 
interception or surveillance of communications, by others interception or surveillance of communications, by others 
than users, without the consent of the users concerned, than users, without the consent of the users concerned, 
except when legally authorised. except when legally authorised, in accordance with 
Article 14(1). 
Article 9 
(following (rejected) amendment 12 instead of amendment 8) 
Member States shall ensure thai the provider of a public Member States shall lav down legal provisions governing 
telecommunications network and/or publicly available the wav in which the provider of a public 
telecommunications service may override the elimination telecommunications network and/or publicly available 
of presentation of the calling line identification: telecommunications service may override the elimination 
of presentation of the calling line identification: 
(a) on a temporary basis, upon application of a 
subscriber requesting the tracing of malicious or (a) on a temporary basis, upon application of a 
common position 
nuisance calls; in this case, in accordance with 
national law. the data containing (he identification 
of ihe calling subscriber will be stored and be made 
available by Ihe provider of a public 
telecommunications network and/or publicly 
available telecommunications service; 
(b) on a per-line basis for Organizations dealing with 
emergency calls and recognised as such by a (b) 
Member State, including law enforcement 
agencies, ambulance services and fire brigades, for 
the purpose of answering such calls. amended proposal 
subscriber requesting the tracing of malicious or 
nuisance calls; in this case, in accordance with 
national law. the data containing the identification 
or the calling subscriber will be stored and be made 
available by the provider of a public 
telecommunications network and/or publicly 
available telecommunications service; 
on a per-line basis for Organizations dealing with 
emergency calls and recognised as such by a 
Member State, including law enforcement 
agencies, ambulance services dnd fire brigades, for 
the purpose of answering such calls. 
Article 11 
(following amendment 9) 
1. Personal data contained in printed or electronic 
directories of subscribers available to the public or 
obtainable through directory enquiry services should 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 indicate that his or her 
personal data may not be used for the purpose of direct 1. Personal data contained in printed or electronic 
directories of subscribers available lo the public or 
obtainable through directory enquiry services should be 
limited lo 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 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 marketing, to have his or her address omitted in part and 
not to have a reference revealing his or her sex. where not to have a reference revealing his or her sex, where 
this is applicable linguistically. this is applicable linguistically. 
2. Member States mav allow operators to require a 
payment from subscribers wishing lo ensure that their 
particulars are not entered in a directory, provided that 
the sum involved is reasonable and docs not act as a 
disincentive to the exercise of this right. 
3. Member States may limit the application of this 2. Member States may limit the application of this 
& 
common position 
Article to subscribers who arc natural persons. amended proposal 
Article to subscribers who are natural persons. 
Article 12 
(instead of suppression of paragraph 3 as proposed by the EP) 
1. The use of automated calling systems without human 
intervention (automatic calling machine) or facsimile 
machines (fax) 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 machine) or facsimile 
machines (fax) for the purposes of direct marketing may 
only be allowed in respect of subscribers who have given 
their prior consent. 
2 Member States Shall take appropriate measures to 
ensure that, free of charge, unsolicited calls 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 lo receive these calls, the choice between 
these options to be determined by national legislation. 2. Member Slates shall lake appropriate measures to 
ensure that, free of charge, unsolicited calls 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 calls, the choice between 
these options to be determined by national legislation. 
3. Member States may limit the application of 
paragraphs I and 2 to subscribers who are natural 
persons. 3. Member States may limit the application of 
paragraphs 1 and 2 to subscribers who are natural persons 
to the extent that the legitimate interests of subscribers 
other than natural persons and, in particular. those of 
small and medium-sized enterprises, remain sufficiently 
protected 
List of data Annex 
(following amendment 10) 
List of data 
For the purpose referred to in Article 6(2) the following 
data may be processed: For the purpose referred to in Article 6(2) the following 
data may be processed: 
Data containing the 
number or identification of the subscriber station, 
address of the subscriber and the type of station, 
total number of units to be charged for the 
accounting period. Data containing the: 
number or identification of the subscriber station, 
address of the subscriber and the type of station, 
total number of units to be charged for the 
accounting period. 
H 
common position 
called subscriber number, 
type, siart lime and duration of the calls made 
and/or the data volume transmitted, 
olher information concerning payments such as 
advance payment, payments by instalments, 
disconnection and reminders. amended proposal 
called subscriber number, 
type, start time and duration of the calls made 
and/or the data volume transmitted, 
date of call /service 
other information concerning payments such as 
advance payment, payments by instalments, 
disconnection and reminders. 
4o 
ISSN 0254-1475 
COM(97) 94 final 
DOCUMENTS 
EN 15 06 10 
Catalogue number : CB-CO-97-080-EN-C 
ISBN 92-78-16384-8 
Office for Official Publications of the European Communities 
L-2985 Luxembourg 
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