WRITTEN QUESTION E-3798/00

by Maurizio Turco (TDI) to the Council

(7 December 2000)

Subject: Limits to the protection of privacy and legal tapping

Under Article 13 of Directive 95/46/EC(1) and Article 14 of Directive 97/66/EC(2), both relating to the protection of privacy and the processing of personal data, and Article 15 of proposal for a directive COM(2000) 385, Member States may impose limits on the general principle of respect for privacy where such measures are required in order to safeguard national security, defence, public security, or the prevention, investigation, detection, and prosecution of criminal offences or unauthorised use of telecommunications or electronic communication systems.

The Working Party set up by Directive 95/46/EC has drawn up recommendation 2/99 on respect for privacy where telecommunications tapping is concerned, in which it specifies the requirements that national laws must meet in order to ensure that tapping carried out by State bodies is consistent with respect for human rights and fundamental freedoms and Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

In the light of the foregoing, can the Council say:

- how it will give effect to the Working Party's recommendation 2/99;

- whether it has ascertained that the national laws authorising tapping conform to the requirements laid down in that recommendation;

- whether it believes that the above-mentioned requirements could be incorporated into Directive 95/46/EC when the latter is revised;

- whether it does not consider, given that the Union is called upon to respect human rights and fundamental freedoms under Articles 6 and 7 of the EU Treaty, that the European institutions should do more to regulate legal tapping in the Union, for instance by removing or clarifying the exemptions granted to Member States as regards legal tapping?

(1) OJ L 281, 23.11.1995, p. 31.

(2) OJ L 24, 30.1.1998, p. 1.

Joint answer to Written Questions E-3798/00 and E-3802/00

(8 March 2001)

Directive 97/66/EC was adopted by the European Parliament and the Council on 15 December 1997 following a meeting of the Conciliation Committee. The provision referred to in the Honourable Member's question was not contained in the common position adopted earlier by the Council on 12 September 1996.

This provision is one of the elements of the compromise reached on the matter of confidentiality of communications, which was one of the issues submitted to the Conciliation Committee. In order to make one of the European Parliament's amendments, which the Council was prepared to accept, compatible with the remainder of the text of the Directive, it proved necessary to add an explicit reference to recordings legally authorised by certain Member States in the course of limited business practice for the purpose of providing evidence of a commercial transaction or communication (Article 5(2)). As part of the compromise on this point, provision had consequently to be made for a further period to enable some Member States to include this possibility in their national legislation.

The Honourable Member's other questions fall within the scope of the powers attributed to the Commission by the Treaty establishing the European Community, and in particular Article 211 thereof.