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 conserning 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
Date: 1997-03-05
Institutions: European Commission
Subjects: data processing, data protection, fundamental rights, protection of privacy, transmission network

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. 

H A C M . U O U N I) 

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 
their 
subscribers  to  public  telecommunications  services  can  rely  on 
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. 

it  that 

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 
the  processing  of  personal  data  and 
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. 

the  protection  of  privacy 

in 

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 

Whereas legal, regulatory, and technical  provisions 

adopted by the Member Slates concerning the protection 

adopted by the Member States concerning the protection 

of personal data, privacy and the legitimate interests of 

of personal data, privacy and the legitimate interests of 

legal persons, in the telecommunications sector, must be 

legal persons, in the telecommunications sector, must be 

harmonised  in order lo avoid obstacles lo the internal 

harmonised  in order to avoid obstacles to the internal 

market for telecommunications  in conformity  with the 

market  for telecommunications  in conformity  with the 

objective scl out  in Article Xa of the Treaty; whereas 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 

to harmonisation  in the telecommunications sector 

guarantee that the promotion and development of new 

because of the essentially transnational  nature of 

telecommunications services and networks between 

telecommunications  networks and services and, whereas, 

Member States will  not be hindered. 

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 

Member States shall ensure via national regulations the 

confidentiality  of communications by means of public 

confidentiality  of communications by means of public 

telecommunications  network and publicly available 

telecommunications  network and publicly available 

telecommunications services.  In particular,  they shall 

telecommunications services.  In particular, they shall 

prohibit  listening, tapping, storage or other kinds of 

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 

(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 

of presentation  of the calling line  identification: 

common  position 

amended 

proposal 

nuisance calls; in this case, in accordance with 

subscriber  requesting the tracing of malicious or 

national  law. the data containing (he identification 

nuisance calls; in this case, in accordance with 

of ihe calling subscriber will be stored and be made 

national  law. the data containing the  identification 

available by Ihe provider of a public 

or the calling subscriber will be stored and be made 

telecommunications  network and/or publicly 

available by the provider of a public 

available telecommunications service; 

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) 

on a per-line basis for Organizations dealing with 

Member State, including law enforcement 

emergency calls and recognised as such by a 

agencies, ambulance services and fire brigades, for 

Member State, including law  enforcement 

the purpose of answering such calls. 

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 

1.  Personal data contained  in printed or electronic 

directories of subscribers available to the public or 

directories of subscribers available lo the public or 

obtainable through directory enquiry services should be 

obtainable through directory enquiry services should be 

limited to what is necessary to identify  a particular 

limited lo what is necessary to identify  a particular 

subscriber,  unless the subscriber has given his 

subscriber, unless the subscriber has given his 

unambiguous consent to the publication of additional 

unambiguous consent to the publication of additional 

personal data.  The subscriber shall be entitled, free of 

personal data.  The subscriber shall be entitled, free of 

charge, to be omitted from  a printed or electronic 

charge, to be omitted from  a printed or electronic 

directory at his or her request, to indicate that his or her 

directory at his or her request, to indicate that his or her 

personal data  may not be used for the purpose of direct 

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 

amended  proposal 

Article to subscribers who arc natural persons. 

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 

1.  The use of automated calling systems without human 

intervention (automatic calling machine) or  facsimile 

intervention (automatic calling machine) or facsimile 

machines (fax)  for the purposes of direct  marketing may 

machines (fax)  for the purposes of direct marketing may 

only be allowed  in respect of subscribers who have given 

only be allowed  in respect of subscribers who have given 

their prior consent. 

their prior consent. 

2  Member States Shall take appropriate  measures to 

2.  Member Slates shall lake appropriate measures to 

ensure that, free of charge, unsolicited calls for purposes 

ensure that, free of charge, unsolicited calls for purposes 

of direct marketing, by means other than those referred  to 

of direct marketing, by means other than those referred to 

in paragraph  1, are not allowed either without the consent 

in paragraph  1, are not allowed either without the consent 

of the subscribers concerned or in respect of subscribers 

of the subscribers concerned or in respect of subscribers 

who do not wish lo receive these calls, the choice between 

who do not wish to receive these calls, the choice between 

these options to be determined by national  legislation. 

these options to be determined by national  legislation. 

3.  Member  States may limit the application of 

3.  Member States may limit the application of 

paragraphs  I and 2 to subscribers who are natural 

paragraphs  1  and 2 to subscribers who are natural persons 

persons. 

List of data 

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 

Annex 

(following amendment  10) 

List of data 

For the purpose referred  to in Article 6(2) the following 

For the purpose referred  to in Article 6(2) the following 

data  may be processed: 

data may be processed: 

Data containing the 

Data containing the: 

number or identification  of the subscriber station, 

number or identification  of the subscriber station, 

address of the subscriber and the type of station, 

address of the subscriber and the type of station, 

total  number of units to be charged  for the 

total  number of units to be charged  for the 

accounting  period. 

accounting period. 

H 

common  position 

called subscriber number, 

amended  proposal 

called subscriber  number, 

type, siart lime and duration of the calls made 

type, start time and duration of the calls made 

and/or the data  volume transmitted, 

and/or the data volume transmitted, 

olher information  concerning payments such as 

date of call /service 

advance payment, payments by instalments, 

other information  concerning payments such as 

disconnection and reminders. 

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 

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