WRITTEN QUESTION E-2681/02 by Erik Meijer (GUE/NGL) to the Commission. Conflict between the requirement to retain telecommunications traffic data and protection of privacy pursuant to Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.
Date: 2002-09-24
Institutions: European Parliament, Provisional data
Subjects: EU Charter of Fundamental Rights, European Convention on Human Rights, application of EU law, data processing, data protection, personal data, protection of privacy, telecommunications

18.9.2003

EN

Official Journal of the European Union

C 222 E/13

Answer given by Mr Vitorino on behalf of the Commission

(15 November 2002)

As the flights concerned are within a Member State, the provisions of the Schengen acquis, which govern
the crossing of internal borders between Member States, are not applicable.

(2003/C 222 E/015)

WRITTEN QUESTION E-2681/02

by Erik Meijer (GUE/NGL) to the Commission

(24 September 2002)

Subject: Conflict between the requirement to retain telecommunications traffic data and protection of
privacy pursuant to Article 8 of the European Convention for the Protection of Human Rights and
Fundamental Freedoms

1.
Is the Commission aware of the view expressed by the Netherlands body for the protection of
personal data, the ‘College Bescherming Persoonsgegevens’ (CBP), formerly known as the ‘Registratiekamer’,
in the Netherlands newspaper Staatscourant of 5 September 2002 that the imposition of a general
requirement to retain telecommunications traffic data for a year or more, which was made possible by
Directive No 2002/58/EC (1) concerning the processing of personal data and the protection of privacy in
the electronic communications sector (cid:1) adopted following its second reading by Parliament at the end of
May (cid:1) is inadmissible?

2.
Has it also noted the reference by the CBP to the view repeatedly voiced by guardians of privacy in
Europe that the requirement to retain traffic data for a year or more infringes the right to respect for
privacy? What is the Commission’s view?

3.
Has it also noted the CBP’s view that a general requirement to retain traffic data contravenes the
obligation to respect privacy as laid down in Article 8 of the European Convention for the Protection of
Human Rights and Fundamental Freedoms (ECHR)?

4.
Can it confirm that this requirement to retain traffic data contravenes the said article of the ECHR, all
the more so as it does not depend on a prior accusation or a particular court order to conduct an
investigation?

5.
Can the Commission confirm that, through Articles 52(3) and 53 of the Charter of Fundamental
Rights of the European Union proclaimed in December 2000 in Nice, the European Union established a
link with the ECHR adopted on 4 November 1950 under the responsibility of the Council of Europe and
last amended on 11 May 1994, which means that EU legislation should be in accordance with this
Convention?

6. What implications should the incompatibility with human rights previously laid down, including the
protection of privacy, have for the plans currently being developed by the Council for a requirement for
the general storing of traffic data in data communications?

(1) OJ L 201, 31.7.2002, p. 37.

Answer given by Mr Liikanen on behalf of the Commission

(13 November 2002)

1.
The Commission is closely involved in the ongoing discussion about the compatibility of general
traffic data retention requirements with the European Convention on Human Rights and the European
Union Charter of Fundamental Rights. In this context, the Commission is aware of positions taken by
national data protection authorities.

C 222 E/14

Official Journal of the European Union

EN

18.9.2003

Throughout the co-decision procedure leading up to the adoption of Directive 2002/58/EC of
2. and 3.
the Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the
protection of privacy in the electronic communications sector (1), the Commission has defended the view
that the general obligation to erase traffic data when they are no longer needed for the provision of the
communication service or for billing purposes, must be maintained. However, the existing margin for
Member States to restrict rights and obligations under the Directive where this is necessary for public
security, national security defence and the prevention, investigation, detection and prosecution of criminal
offences also remains in place, subject to the conditions now explicitly set out in the same Directive
(legislative measure, necessity, appropriateness and proportionality in a democratic society, limitation in
time).

5.

The Commission agrees with the need to ensure conformity with the above mentioned Convention.

Incompatibility between any particular traffic data retention measure and the human rights
4. and 6.
which the Union is committed to respect, is not a foregone conclusion. The Commission is currently
conducting a legal analysis of the compatibility of traffic data retention measures with various legal
instruments, including those referred to in the question. Whether Member States can impose general traffic
data retention requirements on providers of communications services under the European Convention on
Human Rights and if so, in which form and subject to which safeguards, remains to be seen since there is
as yet no case law from the Court of the European Convention on Human Rights or indeed the Court of
Justice on this specific matter.

(1) OJ L 201, 31.7.2002.

(2003/C 222 E/016)

WRITTEN QUESTION E-2717/02

by Vitaliano Gemelli (PPE-DE) to the Commission

(26 September 2002)

Subject: Administrative cases brought by officials and other staff of the European Commission

The initial answer of 24 May 2002 to Written Question E-0661/02 (1) states that a substantial number of
the cases brought by Commission staff (30,5 % before the Court of First Instance and 13,2 % before the
Court of Justice) during the period from 1 January 1996 to 20 June 2001 were deemed to be well founded
and were considered admissible, if only in part, by the two courts.

However, this information is insufficient to determine the full impact on human and financial resources,
bearing in mind that in such cases the Commission is usually ordered to pay the legal costs, including the
fees of the plaintiffs’ lawyers and, on occasion, of those acting for the Commission.

Will the Commission give details of the total number of legal cases during the period in question in which
the Commission had to pay legal costs, together with the average cost of each case?

Will it give details of the total number of persons employed in-house or externally for the management of
administrative disputes covered by Articles 90 and 91 of the Staff Regulations?

(1) OJ C 229 E, 26.9.2002, p. 117.

Answer given by Mr Prodi on behalf of the Commission

(21 November 2002)

The Commission is collecting the information it needs to answer the question. It will communicate its
findings as soon as possible.