CELEX: 51997PC0094
Language: en
Date: 1997-03-05
Title: 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

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
 ---pagebreak---  ---pagebreak--- I.    HACM.UOUNI)
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
 1
   OJ L 281 of 23 November 1995, p 31
 2
   OJ C 315 of 24 October 1996, p.30
 ---pagebreak--- 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
subscribers to public telecommunications services can rely on it that their
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.
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
 ---pagebreak--- 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 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, by which it accepted the revised
text for the proposed Directive.
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.
 ---pagebreak---                      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
 ---pagebreak---    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;
 ---pagebreak--- 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
                                                                 of presentation of the calling line identification:
(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
 ---pagebreak---  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
                                                           &
 ---pagebreak--- 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.                                                         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                                                     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
 ---pagebreak--- common position                                                      amended proposal
    called subscriber number,                          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
 ---pagebreak---                                                                   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
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