WRITTEN QUESTION E-3797/00

by Maurizio Turco (TDI) to the Commission

(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 Commission 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.

Answer given by Mr Bolkestein on behalf of the Commission

(19 February 2001)

The Commission takes account of the Working Party's recommendation 2/99 on protecting data when drawing up proposals for adoption, (in particular, the proposal for a directive concerning the processing of personal data and the protection of privacy in the electronic communications sector(1)), and when monitoring the implementation of Community law.

In its sixth report of 7 December 2000 on the implementation of the telecommunications regulatory package(2), the Commission examined the transposal into national law by the Member States of Directive 97/66/EC of the European Parliament and of the Council of 15 December 1997 concerning the processing of personal data and the protection of privacy in the telecommunications sector. A thorough examination of the national implementing measures is under way. The implementation of Directive 95/46/EC of the European 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 in the Member States will be the subject of a Commission report provided for under Article 33 of this Directive which should deal, in particular, with data processing of sound and image data relating to natural persons.

When assessing whether national measures are in line with Community law, the Commission is obliged to interpret Community law in light of fundamental rights. It must check, in particular, the necessity and proportionality of national measures derogating from the rights and obligations laid down in the body of EU law. It will also make a similar examination under Directive 97/66/EC.

(1) OJ C 365 E, 19.12.2000.

(2) COM(2000) 814 final.