[Chapter-delegates] [European-chapters] Isoc , EU Directive on data retention and Romanian Law request for comments

Tue Jun 28 14:22:35 PDT 2011

leaving aside EU law basics, Christopher and Frederic set the right angle for remedying the problem: lobbying in favour of amending the directive because of its shortcomings and lack of proportionality v-a-v fundamental rights - and not on the basis of conflict with national constitutions. It is probably a pity that the Romanian Court did not submit a request for preliminary ruling by the Court in Luxembourg, things would have been much easier for a quick amendment afterwards. The only thing that buffles me slightly is that the report by the Commision mentions Romania as not having transposed the directive.

Another way of tackling the problem would be through the European Parliament which now acts as co-legislator. Isoc could ask to see the Civil Liberties, Justice and Home  Affairs Committee (see on that Axel Voss' report http://www.europarl.europa.eu/en/headlines/content/20110610STO21214/html/People-tend-to-carelessly-leave-their-digital-traces-behind-Voss) 

Costas Popotas
  ----- Original Message ----- 
  From: Christopher Wilkinson 
  To: ECC Council 
  Cc: Chapter Delegates ; European Chapters 
  Sent: Tuesday, June 28, 2011 10:42 PM
  Subject: Re: [Chapter-delegates] [European-chapters] Isoc ,EU Directive on data retention and Romanian Law request for comments

  http://www.computing.co.uk/ctg/news/2075377/watchdog-slams-eu-retention-directive

  Good evening:

  Whereas Costas Popotas is correct regarding the institutional and legal aspects of this Directive,
  regarding the substance of the matter, my understanding is that the implementation of the Directive is inconsistent with EU privacy law and policy, disproportionate as to the costs, and ineffective regarding both harmonisation and crime prevention.

  Regards,

  CW

  On 28 Jun 2011, at 22:19, Eduard Tric wrote:

    Thank you Costas,we are aware about the info you provided , but why cannot experts admit just for once that there is something wrong with this directive ? The isp's tell us it's wrong, the telcos providers tell us it's wrong, the associations of user protection the same.
    Moreover , the constitutional Court remarks and EU directive are  in 180 degrees opposite directions , we don't see  a miracle solution in proposing another law, as the problem rised by the court comes from the directive. The transposition of aquis is pretty standard legal stuff , there is very little marge in the implementation. So what would be the solution ? If we put isoc name on the new law and the new law will not pass the pairlement , senate and Constitutional Court we will loss credibility. If we do nothing it would not help the EU netizens that we represent, as this problem was already largely discussed on the list.
    Best regards,
    Eduard

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     From: Costas Popotas <cpop at txt.gr>
    To: Eduard Tric <eduard.tric at isoc.ro>; Marta Dias <marta at fccn.pt>; 'Chapter Delegates' <chapter-delegates at elists.isoc.org>
    Sent: Tuesday, June 28, 2011 10:18 PM
    Subject: Re: [Chapter-delegates] Isoc ,Eu Directive on data retention and Romanian Law request for comments

    I intervene as an outsider but expert in EU law. When Romania joined EU it accepted the "acquis communautaire" the preexisting legal framework , thus the obligation to amend its legislation in domains contravening EU secondary legislation  according to the principle of supremacy of EU legislation. But as I understand it, the Romanian Court did not declare unconstitutional the EU directive (which they could have done since they have no such competence) they declared unconstitutional the national legislation implementing the directive. A directive is a broad framework stating the objectives to be attained leaving to the member state the responsibility of the means adopted. This means simply  new legislation has to be adopted in conformity with both EU directive and the national constitution. Nothing dramatic of revolutionary this has been done several times in the past elsewhere.

    The end of a beautiful friendship has meaning only if a member state drops out of the EU.

    best

    Costas Popotas
    Luxembourg 
      ----- Original Message ----- .
      From: Eduard Tric
      To: Marta Dias ; 'Chapter Delegates'
      Sent: Tuesday, June 28, 2011 3:36 PM
      Subject: Re: [Chapter-delegates] Isoc ,Eu Directive on data retention and Romanian Law request for comments

      Hi Marta , Thanks for the info, Portugal did their homework just like any other member state. 

      What is interesting in Romania is that this law (and implicit the directive ) is unconstitutional.
      The Directive  2006/24/EC  was made before EU enlargement, Romania never voted for it , so it should be modified. 

      As a general rule , any  directive declared unconstitutional by a member state should be modified. 

      EU is a union of sovereign states and should never act as a super-state, or it will be "the end of a beautiful friendship" , to mis-quote from Casablanca..
      Regards,
      Eduard

--------------------------------------------------------------------------
      From: Marta Dias <marta at fccn.pt>
      To: 'Eduard Tric' <eduard.tric at isoc.ro>; 'Chapter Delegates' <chapter-delegates at elists.isoc.org>; 'Frederic Donck' <donck at isoc.org>; 'Christopher Wilkinson' <cw at christopherwilkinson.eu>
      Sent: Tuesday, June 28, 2011 4:15 PM
      Subject: RE: [Chapter-delegates] Isoc , Eu Directive on data retention and Romanian Law request for comments

      Hi,
      In Portugal Law 32/2008, transposes into national law Directive 2006/24/EC of Parliament and the Council of 15 March on the retention of data generated or processed in the context of provision of electronic communications services or of public communications networks. Under this law the operators are required to retain the data for a one year period (from the date of the conclusion of the communication).
      Best regards,
      Marta M. Dias
      ISOC.PT

      From: chapter-delegates-bounces at elists.isoc.org [mailto:chapter-delegates-bounces at elists.isoc.org] On Behalf Of Eduard Tric
      Sent: terça-feira, 28 de Junho de 2011 13:51
      To: Chapter Delegates; Frederic Donck; Christopher Wilkinson
      Subject: [Chapter-delegates] Isoc , Eu Directive on data retention and Romanian Law request for comments

      As you probably know , the Romanian Constitutional Court has declared in 2009  Unconstitional the Romanian  transposition of the Eu Directive on Data retention (romanian law 298/2008). As a reminder , this directive asked to retain for 6 months (expenses paid by the operators ) any telecommunication data, including and not limited also to internet data.

      Now the romanian government decided to have a more open approach , and are asking for input from civil society. We have 2-3 weeks to make an answer that is compliant to the Directive AND to the Constitutional court decision.

      We would be  happy to take on our side input from other chapters, Isoc ECC,  Isoc HQ and European Bureau.

      . As it is unlikey that in Romania other organisations will respond , we see this as an opportunity for ISOC , especially in preparation for  the Inet in Bucharest but also to mark a point and help to change this unuseful directive into a more citzien-oriented one. It's gonna be our first public policy-making position, so we want to be as accurate as possible.

      Regards,
      Eduard Tric

      References :
      http://www.mcsi.ro/Transparenta-decizionala
      http://www.mcsi.ro/Transparenta-decizionala/24/ProiectRetinereaDatelor
      http://www.mcsi.ro/Transparenta-decizionala/24/ExpunereMotive
      Eu Directive 2006/24/CE with modification on 2002/58/CE  http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32006L0024:EN:HTML
      romanian law 298/2008  http://www.legi-internet.ro/legislatie-itc/date-cu-caracter-personal/legea-2982008-privind-pastrarea-datelor-de-trafic-informational.html

      Eu commision letter from 16-th of June 2011 reminding the necessity of transponding the directive  2006/24/CE

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