WRITTEN QUESTION E-2655/00

by Diana Wallis (ELDR) to the Commission

(1 September 2000)

Subject: Interception systems in the area of EU telecommunications

In the European Parliament's confirmation hearing on Tuesday, 31 August 1999, Commissioner Liikanen states that it is extremely important for us, of course, as was noted in the debate in Parliament last Spring, that the values of European society are retained in the new system and that we do not accept the built-in interception systems in our telecommunication area.

Some Member States, most notably the United Kingdom, are now legislating the kind of built-in interception systems which the Commissioner finds unacceptable. Does the Commission thus intend to take any action to limit such unacceptable measures on the basis that they are a breach of the right to privacy and free speech? Will the Commission ensure that any EU-wide attempts to impose such built-in systems are subjected to the democratic control of the European Parliament?

Answer given by Mr Liikanen on behalf of the Commission

(23 October 2000)

The Commission presumes the Honourable Member is referring to the Regulation of Investigative Powers Act which was voted in the House of Commons of the United Kingdom on 26 July 2000. It received the royal assent on 28 July 2000.

The draft of this Act was notified to the Commission on 23 February 2000 under the procedure foreseen in Directive 98/34/EC of the Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations(1), also called the transparency directive.

The Commission is currently examining the Act to determine if it is compatible with the provisions of several Community dispositions including the Annex to Directive 97/13/EC of the Parliament and of the Council of 10 April 1997 on a common framework for general authorisations and individual licences in the field of telecommunications services(2) which recognises that the conditions for licences are without prejudice mldr to measures taken by the Member States in accordance with public interest requirements recognised by the Treaty [mldr] specifically in relation to [mldr] public security.

Further, Article 5 of Directive 97/66/EC of the Parliament and of the Council of 15 December 1997 concerning the processing of personal data and the protection of privacy in the telecommunications sector(3) guarantees the confidentiality of communications by means of a public telecommunications network and publicly available telecommunications services. Member States shall prohibit the listening, tapping, storage or other kinds of interception or surveillance of communications by others than users, without the consent of the users concerned, except when legally authorised in accordance with Article 14(1). According to this Article, Member States cannot limit by law their obligation of ensuring the confidentiality of networks for reasons of important economic or financial interest of a Member State, unless it is necessary to safeguard national security, defence, public safety, the prevention, investigation, detection and prosecution of criminal offences or of unauthorised use of the telecommunications system. In addition Directive 97/66/EC provides for protection of the legitimate interests of legal persons as subscribers of telecommunication services, for example business companies and the secrecy of their communications over public networks.

In addition Directive 95/46/EC of the 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(4) ensures free flow of data. Directive 97/66/EC complements and specifies the general directive for the processing of personal data and in particular the confidentiality of communications in the telecommunications sector. It also protects data and communications of legal persons.

Finally the Commission is examining the Act in the light of Article 49 (ex Article 59) of the EC Treaty to see if it creates any obstacles to the free movement of services of by imposing specific obligations on the providers of information society services related to the interception of telecommunications, the acquisition of communications data and access to encrypted data.

As for the second part of the question the Commission would like to inform the Honourable Member that the Commission is not aware of any attempt to impose built-in interception systems on a Community wide scale.

(1) OJ L 204, 21.7.1998.

(2) OJ L 117, 7.5.1997.

(3) OJ L 24, 30.1.1998.

(4) OJ L 281, 23.11.1995.