EP Flawed Proposal 20091020

This wording was agreed on October 20th 2009 as replacing "Amendment 138"

Text to be inserted in Article 1:

"3a. Measures taken by Member States regarding end-users' access to or use of services and applications through electronic communications networks shall respect the fundamental rights and freedoms of natural persons, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and general principles of Community law.

Any such measures liable to restrict those fundamental rights or freedoms may only be taken in exceptional circumstances and imposed if they are necessary, appopriate and proportionate within a democratic society, and shall be subject to adequate procedural safeguards in conformity with the European Convention for the Protection of Human Rights and Fundamental Freedoms and with general principles of Community law, including effective judicial protection and due process. In particular, any measures may only be adopted as a result of a prior, fair and impartial procedure ensuring inter alia that the principle of presumption of innocence and the right to be heard of the person or persons concerned be fully respected. Furthermore, the right to an effective and timely judicial review shall be guaranteed.

This shall not affect the competence of a Member State, in conformity with its own constitutional order and with fundamental rights, to establish a requirement of a judicial decision authorising the measures to be taken."

Problems with this rewording

• No notion of "prior ruling by the judicial authorities" for any restriction anymore
• Only applies to "access to or use of services and applications", not content (allows for "three-strikes" policies)
• Restatements of existing principles of Community law. Nothing new.
• Vague notions of "exceptional circumstances", "appropriate", "necessary", etc.
• In article 1.3 (general principles definitions of the scope of the directive) instead of article 8.4 (effective enforcement tool in the hands of National Regulation Authorities (NRAs)).

See also Trautmann_Flawed_Proposal_20091020