Telecoms Package 2nd Reading ITRE IMCO Amendments

De La Quadrature du Net

In the following amendments, amended text with regard to Council's common position is highlighted in bold italics. In the case of amending acts, passages in an existing provision that the Council has left unchanged, but that Parliament wishes to amend, are highlighted in bold. Any deletions that Parliament wishes to make in passages of this kind are stroke out.

This page will be updated as new amendments are filed and our analysis deepened.

These amendments were replaced by compromise amendments voted in IMCO on Mar 31st, and in ITRE on Apr 21st.

Sommaire

COD/2007/0247 - Trautmann report (framework, access, authorisation) - ITRE committee

DRAFT RECOMMENDATION FOR SECOND READING

on the Council common position for adopting a directive of the European Parliament and of the Council amending Directives 2002/21/EC on a common regulatory framework for electronic communications networks and services, 2002/19/EC on access to, and interconnection of, electronic communications networks and associated facilities, and 2002/20/EC on the authorisation of electronic communications networks and services (16496/1/2008 – C6-0066/2009 – 2007/0247(COD))

Committee on Industry, Research and Energy (ITRE), rapporteur Catherine TRAUTMANN, PSE, FR

Amendment 42 -

  • Article 1 – point 8 – point a amending Directive 2002/21/EC Article 8 – paragraph 1 – subparagraph 2 tabled by Catherine TRAUTMANN, PSE, FR
  • Net Neutrality/Discrimination
Unless otherwise provided in Article 9
regarding radio frequencies or unless
otherwise required in order to fulfil the
objectives laid down in paragraphs 2 to 4,
Member States shall take the utmost
account of the desirability of making
regulations technologically neutral and
shall ensure that, in carrying out the
regulatory tasks specified in this Directive
and the Specific Directives, in particular
those designed to ensure effective
competition, national regulatory authorities
do likewise.

The addition of "paragraphs 2 to 4" in exceptions to network neutrality can be dangerous if amendment 45 (8.4.g) is passed.

  • Voting recommendation: reject

Amendment 45 ---

  • Article 1 – point 8 – point fa amending Directive 2002/21/EC Article 8 – paragraph 4 – point fa tabled by Catherine TRAUTMANN, PSE, FR
  • Net Neutrality/Discrimination
(fa) applying the principle that end-users
should be able to access and distribute
any lawful content and use any lawful
applications and/or services of their
choice;

The notion of unlawful content is known to be applied to copyrighted content accessed or distributed without authorisation. As the rapporteur and the Council have stated, the Framework Directive has nothing to do with copyright. Therefore the amendment should be rejected or alternatively the word lawful should be deleted twice.

  • Voting recommendation: against or should be amended as: (fa) applying the principle that end-users should be able to access and distribute any content and use any applications and/or services of their choice;.

Amendment 46 +++

  • Article 1 – point 8 – point fb amending Directive 2002/21/EC Article 8 – paragraph 4 – point fb tabled by Catherine TRAUTMANN, PSE, FR
  • 3-strike/Fundamental Rights
(fb) applying the principle that no
restriction may be imposed on the
fundamental rights and freedoms of end-
users, without a prior ruling by the
judicial authorities, notably in accordance
with Article 11 of the Charter of
Fundamental Rights of the European
Union on freedom of expression and
information, save when public security is
threatened in which case the ruling may
be subsequent.

This amendment restores AM 138 adopted in 1st reading, which provides useful safeguards against other provisions laying grounds to "three-strikes approach" (graduated response).

  • Voting recommendation: for.

Amendment 78 +

1. Without prejudice to Article 9 of this
Directive and Articles 6 and 8 of Directive
2002/20/EC (Authorisation Directive),
where the Commission finds that
divergences in the implementation by the
national regulatory authorities of the
regulatory tasks specified in this Directive
and the Specific Directives may create a
barrier to the internal market, the
Commission may, taking the utmost
account of the opinion of GERT, if any,
issue a decision on the harmonised
application of the provisions in this
Directive and the Specific Directives in
order to further the achievement of the
objectives set out in Article 8.

2a. The decision referred to in paragraph
1 designed to amend non-essential
elements of this Directive by
supplementing it, shall be adopted in
accordance with the regulatory procedure
with scrutiny referred to in Article 22(3).
2b.     Measures adopted pursuant to
paragraph 1 may include the
identification of a harmonised or
coordinated approach to deal with the
following issues:
(a)     the consistent implementation of
regulatory approaches, including the
regulatory treatment of new services, sub-
national markets and of cross-border
electronic communications services
provided to businesses;
(b)     numbering, naming and
addressing issues, including number
ranges, portability of numbers and
identifiers, number and address
translation systems, and access to 112
emergency services;
(c)     consumer issues not covered by
Directive 2002/22/EC (Universal Service
Directive), including in particular access
to electronic communications services and
equipment by disabled end-users;
(d)     regulatory accounting, including
the calculation of investment risk.

This is not a prure Net Neutrality/Discrimination amendment, but neutrality and non-discrimination has to be enforced by a competent regulator, particularly when it comes to new services and issues outside the scope of 2002/22/EC.

  • Voting recommendation: for.

Amendment 83 -

  • Article 2 -­ point 2 - amending Directive 2002/19/EC Article 4 ­- paragraph 1 tabled by Catherine TRAUTMANN, PSE, FR
  • Net Neutrality/Discrimination
1. Operators of public communications
networks shall have a right and, when
requested by other undertakings so
authorised in accordance with Article 4 of
Directive 2002/20/EC (Authorisation
Directive), an obligation to negotiate
interconnection with each other for the
purpose of providing publicly available
electronic communications services or
delivering broadcast content or
information society services, in order to
ensure provision and interoperability of
services throughout the Community.
Operators shall offer access and
interconnection to other undertakings on
terms and conditions consistent with
obligations imposed by the national
regulatory authority pursuant to Articles 5
to 8. However, the terms and conditions of
interconnection shall not introduce
unjustified barriers to interoperability.

Dividing interconnection negotiations into classes a) electronic communications services, b) broadcast content and c) information society services is indicative of a paradigm non-compliant with the universal charachter of technology neutral Internet information exchange, and invites introducing barriers on a network that is interoperable by design. Such a paradigm must be justified by research and impact assessments.

  • Voting recommendation: against.

Amendment 85 == 148 == 149 --

(aa) in paragraph 1, point (a) shall be
replaced by:
“(a) to the extent that is necessary to
ensure end-to-end connectivity or fair and
reasonable access to third-party services,
obligations on undertakings that control
access to end-users, including in justified
cases the obligation to interconnect their
networks where this is not already the
case or to make their services
interoperable on fair, transparent and
reasonable terms;”


This amendment introduces "fair and reasonable access to third-party services" as an alternative to end-to-end connectivity which breaks the fundamental peer-2-peer architecture of the Internet. The original article wording is as follows: '(a) to the extent that is necessary to ensure end-to-end connectivity, obligations on undertakings that control access to end-users, including in justified cases the obligation to interconnect their networks where this is not already the case;'

  • Voting recommendation: against or should be amended as: replace or with and

Amendment 90 --

  • Article 2 – point 7 – point a amending Directive 2002/19/EC Article 9 – paragraph 1 tabled by Catherine TRAUTMANN, PSE, FR
  • Net Neutrality/Discrimination
1. National regulatory authorities may, in
accordance with the provisions of Article
8, impose obligations for transparency in
relation to interconnection and/or access,
requiring operators to make public
specified information, such as accounting
information, technical specifications,
network characteristics, restrictions on
access to services and applications, traffic
management policies, terms and
conditions for supply and use, including
traffic management policies, and prices.

The term traffic management policies is known to be used to establish network discrimination. And, while Council has used it in this provision as an example of terms and conditions for supply and use, here it is repeated as an obligation. Since some threats to network neutrality appear in Universal Service Directive, via the use of traffic management policies, it should be deleted in this paragraph. The fact that this paragraph establishes some obligations of transparency on network management policies leaves some place for network discrimination, if the term is not properly defined. Moreover, this obligation is followed by restrictions on access to service and applications which was the equivalent adopted by the European Parliament in first reading to the wording traffic management policies adopted by the Council in its Common Position.

  • Voting recommendation: reject and add a recital: A network management policy is deemed non-discriminatory when it is ordered by a decision from the judicial authority, or when users can deactivate it at no extra cost, or when it is a temporary, short term, response to malicious activity or unpredictable occurrence threatening the integrity or security of the network, or end-user security. Such limitation must always be carried out without giving priority to selected users or content/service providers.

No Amendment to Article 9 − Paragraph 2 − point e of Access Directive -

This article still reads as follow:

2. When national regulatory authorities are considering
the obligations referred in paragraph 1, and in particular
when assessing how such obligations would be imposed
proportionate to the objectives set out in Article 8 of Directive
2002/21/EC (Framework Directive), they shall take account in
particular of the following factors:
[...]
(e) where appropriate, any relevant intellectual property rights;

As the rapporteur and the Council have stated, the Framework Directive has nothing to do with intellectual property rights, therefore this point should be deleted.

  • Voting recommendation: propose an amendment deleting Article 9 − Paragraph 2 − point e of Access Directive.

Amendment 107 -

  • Annex – point 2 – point h amending Directive 2002/20/EC Annex – part A – point 19 tabled by Catherine TRAUTMANN, PSE, FR
  • Net Neutrality/Discrimination
19. Transparency obligations on
undertakings providing electronic
communications services available to the
public to ensure end-to-end connectivity,
including unrestricted access to content,
services and applications, in conformity
with the objectives and principles set out in
Article 8 of Directive 2002/21/EC
(Framework Directive), disclosure
regarding traffic management policies and,
where necessary and proportionate, access
by national regulatory authorities to such
information needed to verify the accuracy
of such disclosure.

This amendment circumscribe the basic right to end-to-end connectivity by allowing undertakings to defacto place restrictions on user's services. The logical effect of the word including is actually excluding unlimited access.

  • Voting recommendation: against. Could be ameded as follows:
19. Transparency obligations on
undertakings providing electronic
communications services available to the
public to ensure end-to-end connectivity,
and unrestricted access to content,'
services and applications,' in conformity
with the objectives and principles set out in
Article 8 of Directive 2002/21/EC
(Framework Directive). Disclosure shall
include traffic management policies
and access by national regulatory authorities
to such information needed to verify the accuracy
of such disclosure.

If amended in such a way, the amendment adds some safeguards to users' right to access content, services and applications and gives a reason to delete the word lawful in Amendment 45 (Directive 2002/21/EC Article 8 – paragraph 4 – point fa) as suggested.

Amendment 132 == Amendment 133 +

(b) ensuring that there is no distortion or
restriction of competition in the electronic
communications and information society
services, in particular for the delivery of
and access to content and electronic
communications and information society
services across all networks.

Garantees network neutrality for competition.

  • Voting recommendation: for.

Amendment 134 +++

(fa) in paragraph 4, point (fa) shall be inserted:
“(fa) applying the principle that end-users should 
be able to access and distribute any content and 
use any applications and/or services of their 
choice;”

Access and distribution of any content, and not only lawful content

  • Voting recommendation: for.

Amendment 135 +++

(fb) in paragraph 4, point (fb) shall be inserted:
“(fb) applying the principle that no restriction may 
be imposed on the fundamental rights and freedoms of 
end users, without a prior ruling by the judicial 
authorities, notably in accordance with Article 11 of 
the Charter of Fundamental Rights of the European Union 
concerning freedom of expression and information, save 
when public security is threatened in which case the 
ruling may be subsequent.”

Restores Amendment 138 of first reading, repeats Trautmann's 46.

  • Voting recommendation: for.

Amendment 150 == Amendment 151 ++

  • Article 2 – point 7 – point a amending Directive 2002/19/EC Article 9 – paragraph 1 tabled by Angelika NIEBLER, PPE-DE, DE
  • Net Neutrality/Discrimination
1. National regulatory authorities may, in accordance 
with the provisions of Article 8, impose obligations for
transparency in relation to interconnection and/or 
access, requiring operators to make public specified 
information, such as accounting information, technical 
specifications, network characteristics, terms and 
conditions for supply and use, including the purpose and 
effect of traffic management policies, and prices.

Transparency concerning the goals and consequences of traffic management policies.

  • Voting recommendation: for.

Amendment 166 == Amendment 167 -

19. Transparency obligations on undertakings providing
electronic communications services available to the public 
to ensure end-to-end connectivity, including unrestricted 
access to and distribution of content, services and 
applications, in conformity with the objectives and 
principles set out in Article 8 of Directive 2002/21/EC
(Framework Directive), disclosure regarding traffic 
management policies and, where necessary and proportionate,
access by national regulatory authorities to such information
needed to verify the accuracy of such disclosure.

This amendment circumscribe the basic right to end-to-end connectivity by allowing undertakings to defacto place restrictions on user's services. The logical effect of the word including is actually excluding unlimited access.

  • Voting recommendation: against. Could be ameded as follows:
19. Transparency obligations on
undertakings providing electronic
communications services available to the
public to ensure end-to-end connectivity,
and unrestricted access to content,
services and applications, in conformity
with the objectives and principles set out in
Article 8 of Directive 2002/21/EC
(Framework Directive). Disclosure shall
include traffic management policies
and access by national regulatory authorities
to such information needed to verify the accuracy
of such disclosure.

If amended in such a way, the amendment adds some safeguards to users' right to access content, services and applications and gives a reason to delete the word lawful in Amendment 45 (Directive 2002/21/EC Article 8 – paragraph 4 – point fa) as suggested.

COD/2007/0248 - Harbour report (universal service, ePrivacy) - IMCO committee

DRAFT RECOMMENDATION FOR SECOND READING

on the Council common position for adopting a directive of the European Parliament and of the Council on amending Directive 2002/22/EC on universal service and users' rights relating to electronic communications networks, Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector and Regulation (EC) No 2006/2004 on cooperation between national authorities for the enforcement of consumer protection laws (16497/1/2008 – C6-0068/2009 – 2007/0248(COD))

Committee on the Internal Market and Consumer Protection (IMCO), rapporteur Malcolm HARBOUR, PPE-DE, GB

No Amendment to Recital 20 --

This recital still reads as follow:

(20) In order to address public interest issues
with respect to the use of communications services
and to encourage protection of the rights and
freedoms of others, the relevant national authorities
should be able to produce and have disseminated, with
the aid of providers, public interest information
related to the use of communications services. This
information could include public interest information
regarding copyright infringement, other unlawful uses
and the dissemination of harmful content, and advice
and means of protection against risks to personal
security, which may for example arise from disclosure
of personal information in certain circumstances, as
well as risks to privacy and personal data. The
information could be coordinated by way of the
cooperation procedure established in Article 33(3)
of Directive 2002/22/EC (Universal Service Directive).
Such public interest information should be updated
whenever necessary and it should be presented in
easily comprehensible printed and electronic formats,
as determined by each Member State, and on national
public authority websites. National regulatory
authorities should be able to oblige providers to
disseminate this standardised information to all
their customers in a manner deemed appropriate by
the national regulatory authorities. When required
by Member States, the information should also be
included in contracts.

This recital has been identified to lay grounds to "three-strikes approach" (graduated response). If amendment 46 to Framework Directive, which provides some safeguards against this scheme, is not passed, it is better to delete this recital.

  • Voting recommendation: propose an amendment deleting Recital 20.

Amendment 5 -

(22) End-users should decide what
content they require to be able to send and
receive, and which services, applications,
hardware and software they require to use
for such purposes, without prejudice to
the need to preserve the integrity and
security of networks and services. A
competitive market with transparent
offerings as provided for in Directive
2002/22/EC should ensure that end-users
are able to access and distribute any
content and to use any applications
and/or services of their choice, as stated
in Article 8 of Directive 2002/21/EC.
Given the increasing importance of
electronic communications for consumers
and businesses, users should in any case be
fully informed of any limitations imposed
on the use of electronic communications
services by the service and/or network
provider. Such information should, at the
option of the provider, specify the type of
content, application or service concerned,
individual applications or services, or
both. Depending on the technology used
and the type of limitation, such limitations
may require user consent under Directive
2002/58/EC.

Provides some safeguards against network discrimination. But type of limitation should not be specified at the option of the provider, since it would hinder transparency imposed on providers. Moreover this amendment gives a reason to delete the word lawful in Amendment 45 of ITRE draft report (Directive 2002/21/EC Article 8 – paragraph 4 – point fa) as suggested.

  • Voting recommendation: against or should be amended to delete , at the option of the provider,.

Amendment 6 ++

(22a) Directive 2002/22/EC does not
require providers to monitor information
transmitted over their networks or to
bring legal proceedings against their
customers on grounds of such
information, nor does it make providers
liable for that information. Responsibility
for punitive action or criminal
prosecution remains with the relevant law
enforcement authorities.

Restates the mere-conduct principle, which is at the basis of network neutrality.

  • Voting recommendation: for.

No Amendment to Recital 23 --

This recital still reads as follow:

(23) In the absence of relevant rules of Community
law, content, applications and services are deemed
lawful or harmful in accordance with national
substantive and procedural law. It is a task for the
Member States, not for providers of electronic
communications networks or services, to decide, in
accordance with due process, whether content,
applications or services are lawful or harmful. The
Framework Directive and the Specific Directives are
without prejudice to Directive 2000/31/EC of the
European Parliament and of the Council of 8 June
2000 on certain legal aspects of information society
services, in particular electronic commerce, in the
Internal Market (Directive on electronic commerce)(OJ
L 178, 17.7.2000, p. 1.), which, inter alia, contains
a "mere conduit" rule for intermediary service
providers, as defined therein.

The reference to lawful content is known to be used as a ground for "three-strikes" approach (graduated response) and has nothing to do in the Universal Service Directive, since the rapporteur said that copyright enforcement has nothing to do in this directive.

  • Voting recommendation: propose an amendment deleting Recital 23.

Amendment 9

(26) A competitive market should ensure
that users receive the quality of service
they require, but in particular cases it may
be necessary to ensure that public
communications networks attain minimum
quality levels so as to prevent degradation
of service, the blocking of access and the
slowing of traffic over networks. Since
inconsistent remedies will significantly
impair the achievement of the internal
market, the Commission should assess
any requirements set by national
regulatory authorities for possible
regulatory intervention across the
Community and, if necessary, adopt
technical implementing measures in order
to achieve consistent application
throughout the Community.

Mixes Recital 26 of the Council's Common Position and recital 14d of the European Parliament's first reading. It doesn't seem dangerous with regard to network discrimination. A similar amendment from AT&T was proposing to allow unjustified degradation of service, usage restrictions and/or limitations of traffic, which would have been very dangerous.

  • Voting recommendation: none.

Amendment 17 --

(39) In order to overcome existing
shortcomings in terms of consumer
consultation and to appropriately address
the interests of citizens, Member States
should put in place an appropriate
consultation mechanism. Such a
mechanism could take the form of a body
which would, independently from the
national regulatory authority and from
service providers, carry out research on
consumer-related issues such as consumer
behaviour and mechanisms for changing
suppliers, and which would operate in a
transparent manner and contribute to the
existing mechanisms for stakeholders'
consultations. Furthermore, a mechanism
could be established for the purpose of
enabling appropriate cooperation on issues
relating to the promotion of lawful content.
Any cooperation procedures agreed
pursuant to such a mechanism should,
however, not allow for the systematic
surveillance of internet usage. Where there
is a need to address the facilitation of the
access to and use of electronic
communications services and terminal
equipment for disabled users, and without
prejudice to Directive 1999/5/EC and in
particular the disability requirements
pursuant to Article 3(3)(f) thereof, the
Commission should be empowered to
adopt implementing measures.

This amendment doesn't change anything in the important provisions of this recital, namely Furthermore, a mechanism could be established for the purpose of enabling appropriate cooperation on issues relating to the promotion of lawful content. Any cooperation procedures agreed pursuant to such a mechanism should, however, not allow for the systematic surveillance of internet usage. The cooperation to promote lawful content is known to be used as a ground for "three-strikes" approach (graduated response) and has nothing to do in the Universal Service Directive, since the rapporteur said that copyright enforcement has nothing to do in this directive.

  • Voting recommendation: propose an amendment deleting the two sentences Furthermore, a mechanism could be established for the purpose of enabling appropriate cooperation on issues relating to the promotion of lawful content. Any cooperation procedures agreed pursuant to such a mechanism should, however, not allow for the systematic surveillance of internet usage.

Amendment 18 +

(39a) The procedure for out-of-court
dispute resolution should be strengthened
by ensuring that independent dispute
resolution bodies are used, and that the
procedure conforms at least to the
minimum principles established by
Commission Recommendation 98/257/EC
of 30 March 1998 on the principles
applicable to the bodies responsible for
out-of-court settlement of consumer
disputes (OJ L 115, 17.4.1998, p. 31.).
Member States may either use
existing dispute resolution bodies for that
purpose, provided those bodies meet the
applicable requirements, or establish new
bodies. Furthermore, when dealing with
out-of-court procedures, Member States
should make every effort to ensure that
those procedures are transparent and
exercised impartially, in particular in view
of Recommendation 98/257/EC, so that
the effectiveness, fairness and legality of
the procedure is safeguarded.

Principles established by Commission Recommendation 98/257/EC adds some safeguards for out-of-court settlement of consumer disputes, while it does not prevent a national administrative authority to enforce a "three-strikes" approach (graduated response) as currently drafted by French government.

  • Voting recommendation: for.

Amendment 19 +

(39b)Directive 2002/58/EC provides for
the harmonisation of the provisions of the
Member States required to ensure an
equivalent level of protection of
fundamental rights and freedoms, and in
particular the right to privacy and the
right to confidentiality, with respect to the
processing of personal data in the
electronic communications sector, and to
ensure the free movement of such data
and of electronic communications
equipment and services in the
Community. Where measures aiming to
ensure that terminal equipment is
constructed so as to safeguard the
protection of personal data and privacy
are adopted pursuant to Directive
1999/5/EC or Council Decision
87/95/EEC, such measures should respect
the principle of technology neutrality.

Restates the principle of network neutrality.

  • Voting recommendation: for.

Amendment 21

(39d) Internet Protocol (IP) addresses are
essential to the functioning of the
internet. They identify network
participating devices, such as computers
or mobile smart devices according to an
assigned, although not necessarily
exclusive, IP number also known as IP
address. Given the variety of scenarios in
which IP addresses are used, and the
related technologies which are rapidly
evolving, questions have arisen about the
use of such addresses as personal data in
certain circumstances. The Commission
should therefore present related proposals
as appropriate, on the basis of a study on
IP addresses and their various uses.

This amendment restores, in a slightly modified version, Recital 27a adopted by European Parliament in its first reading. But this recital was presented by EDPS as an alternative to the deletion of a dangerous recital previously adopted in IMCO. Therefore, it can be adopted or rejected.

  • Voting recommendation: none.

Amendment 43 -

  • Article 1 – point 13 amending Directive 2002/22/EC Article 20 – paragraph 1 – point b tabled by Malcolm HARBOUR, PPE-DE, GB
  • Net Neutrality/Discrimination
(b) the services provided, including in
particular:

- whether or not access to emergency
services and caller location information
are being provided and/or any limitations
for provision of emergency services under
Article 26;
 
- information on any limitations imposed
by the undertaking, in accordance with
national law, on a subscriber's ability to
access, use or distribute information or
run applications or services,

- the minimum service quality levels
offered, namely the time for the initial
connection and, where appropriate, other
quality of service parameters, as defined by
the national regulatory authorities,

- the types of maintenance service offered
and customer support services provided, as
well as the methods to contact these
services, and,

- any restrictions imposed by the provider
on the use of terminal equipment supplied

This article, as adopted by European Parliament in its first reading, raised concerns because of the second point which talked about restictions to access to lawful content. The Council replaced this by network management policies, which is also subject to concerns with regard to network neutrality. The wording of amendment 43 is more appropriate. But it still needs some boundaries to limitations on a subscriber's ability to access, use or distribute information or run applications or services.

  • Voting recommendation: against and amend to state non-discriminatory limitation and add a recital: A limitation on a subscriber's ability to access, use or distribute information or run applications or services is deemed non-discriminatory when it is ordered by a decision from the judicial authority, or when users can deactivate it at no extra cost, or when it is a temporary, short term, response to malicious activity or unpredictable occurrence threatening the integrity or security of the network, or end-user security. Such limitation must always be carried out without giving priority to selected users or content/service providers.

Amendment 49 -

  • Article 1 – point 13 amending Directive 2002/22/EC Article 21 – paragraph 3 tabled by Malcolm HARBOUR, PPE-DE, GB
  • Net Neutrality/Discrimination
3. Member States shall ensure that national
regulatory authorities are able to oblige
undertakings providing connection to a
public electronic communications
network and/or electronic communications
services to inter alia:

(a) provide applicable tariff information to
subscribers regarding any number or
service subject to particular pricing
conditions; with respect to individual
categories of services, national regulatory
authorities may require such information to
be provided immediately prior to
connecting the call

(b) regularly remind subscribers of any
lack of reliable access to emergency
services or caller location information in
the service they have subscribed to;

(c) inform subscribers of any change to any
limitations imposed by the undertaking, in
accordance with national law, on a
subscriber's ability to access, use or
distribute information or run applications
or services,

(d) inform subscribers of their right to
determine whether or not to include their
personal data in a directory and of the
types of data concerned in accordance with
Article 12 of Directive 2002/58/EC; and

(e) regularly inform disabled subscribers of
details of products and services designed
for them.

If deemed appropriate, national regulatory
authorities may promote self- or
co-regulatory measures prior to imposing
any obligation.

The same remarks apply for point (c) as for amendment 43.

  • Voting recommendation: against and amend to state non-discriminatory limitation and add a paragraph 22.4: A limitation on a subscriber's ability to access, use or distribute information or run applications or services is deemed non-discriminatory when it is ordered by a decision from the judicial authority, or when users can deactivate it at no extra cost, or when it is a temporary, short term, response to malicious activity or unpredictable occurrence threatening the integrity or security of the network, or end-user security. Such limitation must always be carried out without giving priority to selected users or content/service providers.

Amendment 53

  • Article 1 – point 13 amending Directive 2002/22/EC Article 22 – paragraph 3 − subparagraph 1 a (new) tabled by Malcolm HARBOUR, PPE-DE, GB
  • Net Neutrality/Discrimination
The Commission may, having examined
such requirements and consulted the
Body of European Regulators in Telecom
(BERT), adopt technical implementing
measures in that regard if it considers that
the requirements may create a barrier to
the internal market. Those measures
designed to amend non-essential elements
of this Directive by supplementing it shall
be adopted in accordance with the
regulatory procedure with scrutiny
referred to in Article 37(2).

This amendment restores partially Article 22 − paragraph 3 as adopted by European Parliament in its first reading, which has raised some concerns about the imposition of DRM. But the dangerous part of this paragraph has already be softened by the Council, replacing the reference to guidelines to enable the access or distribution of lawful content or applications by setting minimum quality of service requirements. Therefore, this amendment can be adopted or rejected.

  • Voting recommendation: none.

Amendment 72 +++

  • Article 1 – point 21 a (new) amending Directive 2002/22/EC Article 32 a (new) tabled by Malcolm HARBOUR, PPE-DE, GB
  • Fundamental Rights/Net Neutrality/Discrimination
Article 32a

Access to content, services and applications

Member States shall ensure that any
restrictions on the rights of users to access
content, services and applications, if such
restrictions are necessary, are
implemented by appropriate measures, in
accordance with the principles of
proportionality, effectiveness and
dissuasiveness. Those measures shall not
have the effect of hindering the
development of the information society, in
compliance with Directive 2000/31/EC of
the European Parliament and of the
Council of 8 June 2000 on certain legal
aspects of information society services, in
particular electronic commerce, in the
Internal Market (Directive on electronic
commerce)*, and shall not conflict with
the fundamental rights of citizens,
including the right to privacy and the
right to due process.

This amendment restores amendment 166 adopted by European Parliament in its first reading, which provides safeguards against net discrimination.

  • Voting recommendation: for.

No Amendment to Article 33 − Paragraph 3 of Universal Service Directive ---

This article still reads as follow:

3. Without prejudice to national rules in conformity with
Community law promoting cultural and media policy objectives,
such as cultural and linguistic diversity and media pluralism,
national regulatory authorities and other relevant authorities may
promote cooperation between undertakings providing electronic
communications networks and/or services and sectors
interested in the promotion of lawful content in electronic
communication networks and services. That cooperation may
also include coordination of the public interest information to be
provided pursuant to Article 21(4)(a) and Article 20(1).

The cooperation between FAI and sectors interested in the promotion of lawful content is known to be used as a ground for "three-strikes" approach (graduated response) and has nothing to do in the Universal Service Directive, since the rapporteur said that copyright enforcement has nothing to do in this directive.

  • Voting recommendation: propose an amendment deleting Article 33 − Paragraph 3 of Universal Service Directive.

Amendment 74 +

1. Member States shall ensure that
transparent, non-discriminatory, simple
and inexpensive out-of-court procedures
are available for dealing with unresolved
disputes between consumers and
undertakings providing electronic
communications networks and/or services
arising under this Directive and relating to
the contractual conditions and/or
performance of contracts concerning the
supply of those networks and/or services.
Member States shall adopt measures to
ensure that such procedures enable disputes
to be settled fairly and promptly and may,
where warranted, adopt a system of
reimbursement and/or compensation. Such
procedures shall enable disputes to be
settled impartially and shall not deprive
the consumer of the legal protection
afforded by the national law. Member
States may extend these obligations to
cover disputes involving other end-users.

Member States shall ensure that the
bodies in charge of dealing with such
disputes, which can be single points of
contact, provide relevant information for
statistical purposes to the Commission
and the authorities.

With specific regard to the interaction of
audiovisual and electronic
communications, Member States shall
encourage reliable out-of-court
procedures.

This amendment adds some safeguards for customer in case of out-of-court procedures.

  • Voting recommendation: for.

Amendment 85 --

(a) paragraph 1 shall be replaced by the
following:
 
1. Traffic data relating to subscribers and
users processed and stored by the provider
of a public communications network or
publicly available electronic
communications service must be erased or
made anonymous when it is no longer
needed for the purpose of the transmission
of a communication without prejudice to
paragraphs 2, 2a, 3 and 5 of this Article
and Article 15(1).
 
(aa) The following paragraph 1 a shall be
inserted:
 
1a. Traffic data necessary for the
purposes of subscriber billing and
interconnection payments may be
processed. Such processing is
permissible only up to the end of the
period during which the bill may
lawfully be challenged or payment
pursued.
 
(ab) The following paragraph 1 b shall be
inserted:
 
1b. Without prejudice to compliance with
provisions other than Article 7 of
Directive 95/46/EC and Article 5 of this
Directive, traffic data may be processed
in the legitimate interest of the data
controller for the purpose of
implementing technical measures to
ensure the network and information
security, as defined by Article 4(c) of
Regulation (EC) No 460/2004 of the
European Parliament and of the Council
of 10 March 2004 establishing the
European Network and Information
Security Agency (OJ L 77, 13.3.2004, p. 1.),
of a public electronic
communication service, a public
electronic communications network, an
information society service or related
terminal and electronic communication
equipment, except where such interest is
overridden by those of the fundamental
rights and freedoms of the data subject.
Such processing shall be restricted to that
which is strictly necessary for the
purposes of such security activity.
 
(b) paragraph 3 shall be replaced by the
following:
 
3. For the purpose of marketing electronic
communications services or for the
provision of value added services, the
provider of a publicly available electronic
communications service may process the
data referred to in paragraph 1 to the extent
and for the duration necessary for such
services or marketing, if the subscriber or
user to whom the data relate has given his
or her prior consent. Users or subscribers
shall be given the possibility to withdraw
their consent for the processing of traffic
data at any time.
 
4. The service provider must inform the
subscriber or user of the types of traffic
data which are processed and of the
duration of such processing for the
purposes mentioned in paragraph 2 and
2a and, prior to obtaining consent, for the
purposes mentioned in paragraph 3.
 
5. Processing of traffic data, in
accordance with paragraphs 1, 2, 2a, 3
and 4, must be restricted to persons acting
under the authority of providers of the
public communications networks and
publicly available electronic
communications services handling billing
or traffic management, customer
enquiries, fraud detection, other network
and information security, marketing
electronic communications services or
providing a value added service, and must
be restricted to what is necessary for the
purposes of such activities.
 
6. Paragraphs 1, 2, 2a, 3 and 5 shall apply
without prejudice to the possibility for
competent bodies to be informed of traffic
data in conformity with applicable
legislation with a view to settling disputes,
in particular interconnection or billing
disputes.


This amendment restores the article as adopted by the European Parliament in its first reading, and specially AM 181 which introduced Article 6.6a, renumbered 6.1b in the current amendment.

Both this amendment and the Council common position would allow the telecommunications industry to collect a potentially unlimited amount of sensitive, confidential communications data including our telephone and e-mail contacts, the geographic position of our mobile phones and the websites we visit on the Internet. Apart from the creation of vast data pools that could go far beyond what is being collected under the directive on data retention, the proposal would also permit the disclosure of traffic data to other companies, government authorities and individuals.

In his opinion of 9 January 2009, the EDPS "recommends to reject this Article". He confirms that "Article 6.6(a) is unnecessary and subject to risk of abuse" and goes on to say: "Any existing or future article is unlikely to remove the obvious risks of an overly broad application of the exception for reasons other than purely security related or by entities that should not be able to benefit from the exception. [...] Taking into account on the one hand the risks that Article 6.6(a) poses to the fundamental right to data protection and privacy of individuals, and on the other hand the fact that, as explained in this Opinion, from a legal point of view, this Article is unnecessary, the EDPS has come to the conclusion that the best outcome would be for the proposed Article 6.6(a) to be deleted altogether."

With amendment 85,

  • retention would not be limited to specific occasions and would thus take place permanently,
  • no maximum retention period would be specified, so data would potentially be stored forever,
  • the disclosure of our communications data to third parties would be legalized ("may be processed"),
  • data retained for security purposes could later be used for any other purpose, including disclosure to government authorities or IPR holders (no purpose limitation).

MEPs should heed the advice given by the European Data Protection Supervisor (EDPS) and

  1. work towards the tabling of an amendment (e.g. group amendment in plenary) to delete article 2 point 6 of the Council common position altogether,
  2. in the meantime, vote for amendment 150 tabled by Ms Svensson in IMCO (vote scheduled for 31 March 2009), and
  3. work towards the withdrawal or the rejection of amendment 85 tabled by the rapporteur in IMCO.

For details see joint press release "EU proposal puts confidential communications data at risk" and background paper.

  • Voting recommendation: against this amendment and vote for amendment 150 instead.

Amendment 103

(bb) Protection software

Member States shall ensure that national
regulatory authorities are able to require
operators to make available free of charge
to their subscribers reliable, easy-to-use
and freely and fully configurable
protection and/or filtering software to
prevent access by children or vulnerable
persons to content unsuitable for them.

Any traffic monitoring data that this
software may collect is for the use of the
subscriber only.


This amendment restores a provision adopted by European Parliament in its first reading. But this provision was adopted as an alternative to the deletion of a dangerous provision previously adopted in IMCO. Therefore, it can be adopted or rejected.

  • Voting recommendation: none.

Amendment 105 --

(22) Given the increasing importance of
electronic communications for consumers
and businesses, users should be fully
informed of any relevant limitations
imposed on the use of electronic
communications services by the service
and/or network provider with which they
conclude the contract.

This amendment is limited to information about network discrimination and delete a safeguard that limitations should be reasonable, while other amendments (106 & 107) to this recital state as a basic principle that end-users decide what they require to send and receive. Moreover any limitation is relevant.

  • Voting recommendation: against

Amendment 106 ++

(22) End-users should decide what content they require
to be able to send and receive, and which services,
applications, hardware and software they require to use
for such purposes, without prejudice to the need to
preserve the integrity and security of networks and 
services. A competitive market with transparent
offerings as provided for in Directive 2002/22/EC should
ensure that end-users are able to access and distribute
any content and to use any applications and/or services
of their choice, as stated in Article 8 of Directive
2002/21/EC. Given the increasing importance of
electronic communications for consumers and businesses,
users should in any case be fully informed of the traffic
management policies of the service and/or network provider
with which they conclude the contract. Disclosure should
be such that consumers are able to make an informed
decision, and enable them to choose to adjust their
behaviour or to switch networks. The information on
traffic management policies should include the criteria
and rules implemented by the operator for managing traffic,
including the thresholds that will trigger changes in the
users' experience of the services. It shall, where necessary,
disclose specific actions included in the traffic management
policy. Depending on the technology used, this may require
user consent under Directive 2002/58/EC.

Unsure of whether the wording is efficient against net discrimination, but it the explicit goal of this amendment in its justification.

  • Voting recommendation: for

Amendment 107 +

(22) End-users should decide what content they want to be able
to send and receive, and which services, applications, hardware
and software they want to use for such purposes, without prejudice
to the need to preserve the integrity and security of networks
and services. A competitive market with transparent offerings
as provided for in Directive 2002/22/EC should ensure that
end-users are able to access and distribute any content and to
use any applications and/or services of their choice, as stated
in Article 8 of Directive 2002/21/EC. Given the increasing
importance of electronic communications for consumers and
businesses, users should be fully informed of the traffic
management policies of, and subsequent possible limitations of
access to applications or services imposed by, the service
and/or network provider with which they conclude the contract.
Where there is a lack of effective competition, national
regulatory authorities should use the remedies available to
them under Directive 2002/19/EC (Access Directive) to ensure
that users' access to particular types of content or
application is not unreasonably restricted.

The first part of the amendment is preserving unrestricted access to content/services/applications, but the last part recalls that there can be limitations. Therefore this amendment is not very good, but can be accepted if limitations are clearly restricted in other amendments like 139/141.

Amendment 108 --

(22a) Traffic management policies should be defined for
the purposes of disclosure under this Directive. The
practices embodied in them are fully subject to
competition scrutiny. 

Reduces traffic management policies to a strictly anti-competitive issue.

  • Voting recommendation: against

Amendment 109 +++

(22a) Traffic management policies are the rules and guidelines
which a network operator has put in place to handle the flow of
traffic on the network (i.e. bandwidth management), but they may
additionally utilise capabilities installed by the operator to
prioritise, block and filter traffic according to pre-set
criteria. These policies must be able to be justified by a valid
technical reasons such as temporary short-term remedies put in
place so as to smooth traffic in cases of acute network congestion
or in response to malicious activity threatening network security
or end-user security. Traffic management policies should be neutral
in respect of content and applications and must not result in the
user not being able to access content, services and applications.
Operators should in all cases respect fundamental rights and
freedoms of users. 

More or less our definition of acceptable network management policies.

  • Voting recommendation: for

Amendment 110 ++

(22 bis) La directive 2002/22/CE n'exige pas des fournisseurs
qu'ils contrôlent les informations transmises par l'intermédiaire
de leurs réseaux, ni qu'ils engagent des poursuites judiciaires
à l'encontre de leurs clients en raison d'informations transmises,
et ne rend pas les fournisseurs responsables de ces informations.
Il appartient aux autorités compétentes d'engager des poursuites
pénales.

French translation of amendment 6 of Harbour

  • Voting recommendation: for

Amendment 111 +++

(22b) Internet users are entitled to an Internet connection to send
and receive content of their own choice, use services and 
applications of their own choice, and connect hardware and use software
of their own choice that does not harm the network. Internet users are
entitled to a connection free from discrimination based on type of
application, service or content, or based on sender or receiver address.

More or less our definition of net neutrality.

  • Voting recommendation: for

Amendment 113 +

(24) The availability of transparent, up-to-date and comparable
information on offers and services is a key element for consumers in
competitive markets where several providers offer services. End-users
and consumers of electronic communications services should be able to
easily compare the prices of various services and their
traffic management policies offered on the market based on information
published in an easily accessible form. In order to allow them to
make price comparisons easily, national regulatory authorities should
be able to require from undertakings providing electronic
communications networks and/or services greater transparency as
regards information (including tariffs, consumption patterns, and
other relevant statistics) and to ensure that third parties have the
right to use publicly available information published by such
undertakings, without charge. National regulatory authorities
should also be able to make price guides available, in particular
where the market has not provided them free of charge or at a
reasonable price. Undertakings should not be entitled to any
remuneration for the use of information where it has already been
published and thus belongs in the public domain. In addition,
end-users and consumers should be adequately informed of the price
and the type of service offered before they purchase a service, in
particular if a freephone number is subject to additional charges.
National regulatory authorities should be able to require that such
information is provided generally, and, for certain categories of
services determined by them, immediately prior to connecting the
call, unless it is otherwise provided for by national law. When
determining the categories of call requiring pricing information
prior to connection, national regulatory authorities should take due
account of the nature of the service, the pricing conditions which
apply to it and whether it is offered by a provider who is not a
provider of electronic communications services. Without prejudice to
Directive 2000/31/EC (Directive on electronic commerce), undertakings
should also, if required by Member States, provide to subscribers
with public interest information produced by the relevant public
authorities regarding, inter alia, the most common infringements and
their legal consequences. Significant additional costs incurred
by undertakings for dissemination of such information
should be agreed between the undertakings and the relevant
authorities and met by those authorities. 

This is an exact copy of Amendment 7, tabled by the Rapporteur, with the insertion of "and their traffic management policies". It is noteworthy the Rapporteur overwrites his own amendment 7 with amendment 112.

  • Voting recommendation: for

Amendment 114 ++

(24a) Transparency measures are most effective where disclosure is
made both to users and to regulatory authorities, including the 
National Regulatory Authorities and where necessary, to the 
BERT/GERT. Member States should ensure therefore that National 
Regulatory Authorities, the Commission and BERT/GERT may require 
disclosure of traffic management policies and take appropriate 
measures in cases where operators fail to disclose their traffic
management policies or where the traffic management  policy does
not respect the rights of users to access the content, applications
and services of their choice. Disclosure to regulators should
include the traffic management equipment installed by the operator,
when it was first commissioned, where in the network it is deployed,
how it is configured, when and under what circumstances it is used,
and the criteria for restrictions or limitations on usage by end-users
including the thresholds that will trigger limits on users' access.
It should, where necessary, disclose specific actions included in
the traffic management policy.

Unsure of whether the wording is efficient against net discrimination, but it the explicit goal of this amendment in its justification.

  • Voting recommendation: for

Amendment 115 +++

(26) A competitive market should ensure that users enjoy the quality
of service they require, but in particular cases it may be necessary
to ensure that public communications networks attain minimum quality
levels so as to prevent degradation of service, the blocking of
access and the slowing of traffic over networks. 
Prioritisation or limitation of traffic must be able to be 
justified by a valid technical reason, such as temporary 
short-term remedies put in place so as to smooth traffic in cases of 
 acute network congestion or in response to malicious activity 
threatening network security or end-user security, and must not result
in the user not being able to access content, services and applications.
A minimum quality of service should ensure that users are able to access
all content, services and applications of their choice without being hindered, 
limited or blocked by the traffic management policies of the network
operator. Since inconsistent remedies will significantly impair the
achievement of the internal market, the Commission should assess any
requirements set by national regulatory authorities for possible
regulatory intervention across the Community and, if necessary,
adopt technical implementing measures in order to achieve consistent
application throughout the Community.

More or less our definition of minimum quality of service.

  • Voting recommendation: for

Amendment 116 ---

(26) A competitive market should also ensure that
users are able to have the quality of service they
require, but in particular cases it may be necessary
to ensure that public communications networks attain
minimum quality levels so as to address unjustified
degradation of service, usage limitations and slowing
of traffic.

AT&T amendment.

  • Voting recommendation: against

Amendment 117 == Amendment 118 ---

(26a) Directive 2002/22/EC is without prejudice to
reasonable network management by providers, for example
to address congestion and capacity constraints, to
ensure the security of the network and of users and to
enable reliable performance of individual services.
These practices should not hinder the competitive
development of the information society and should
respect the requirements set out in articles 20 and
21 of Directive 2002/22/EC.

AT&T amendment.

  • Voting recommendation: against

Amendment 124

  • Article 2 – point 2 – point (c) amending Directive 2002/22/EC Article 2 – point (e) tabled by Malcolm HARBOUR, PPE-DE, GB
  • Net Neutrality/Discrimination
(e) “traffic management policies” means
the procedures put in place by the
provider of a public electronic
communications service or network in
order to measure and control traffic on a
network link so as to avoid filling the link
to capacity or overfilling the link, which
might result in network congestion and
poor performance.

This amendments doesn't guarantee network neutrality nor promote network discrimination.

  • Voting recommendation: none.

Amendment 125 ++

  • Article 1 – point 13 amending Directive 2002/22/EC Article 20 – paragraph 1 – point (b) tabled by Eva-Britt SVENSSON, GUE/NGL, SE
  • Net Neutrality/Discrimination
(b) the services provided, including in particular:
– information on the traffic management policies operated by the undertaking such that
the subscriber is able to make an informed decision as to whether to purchase the
service, and/or, where necessary, adjust their behaviour, deactivate the service,
alter the service criteria or switch networks. Operators shall, where necessary,
disclose specific actions included in the traffic management policy,

– whether or not access to emergency services and caller location information are
being provided and/or any limitations for provision of emergency services under
Article 26,

- the minimum service quality levels offered, namely the time for the initial connection and,
where appropriate, other quality of service parameters, as defined by the national regulatory
authorities,

- the types of maintenance service offered and customer support services provided, as well as
the means of contacting these services,

- any restrictions imposed by the provider on the use of terminal equipment supplied;

It is essential the "traffic management policies operated by the undertaking [...] can be understood by the subscriber.

Amendment 126 --

  • Article 1 – point 13 amending Directive 2002/22/EC Article 20 – paragraph 1 – point (b) – indent 1 tabled by Jacques TOUBON, PPE-DE, FR
  • Net Neutrality/Discrimination
 – information on any relevant limitations
imposed by the undertaking, in
accordance with national law, on a
subscriber's ability to access, use or
distribute information or run applications
or services,

To be able to distribute information is a fundamental right. Every limitation is relevant. This amendment opens up for both state and corporate cencorship.

  • Voting recommendation: against

Amendment 127 +

(b) the services provided, including in particular,
- whether or not reliable and accurate access to
emergency services and caller location information
is being provided and/or any limitations for
provision of emergency services under Article 26
and/or the possible lack of access in areas not
covered by mobile networks,
- information on any limitations regarding access
to and/or use of services and applications, including
information on any traffic management policies which
are essential to prevent degradation of service or
slowing of traffic over networks and on how these may
impact on the delivery of the service,
- the minimum service quality levels offered, namely
the time for the initial connection and, where
appropriate, other quality of service parameters,
as defined by the national regulatory authorities,
- the types of maintenance service offered and customer
support services provided, as well as the means of
contacting these services,
- any restrictions imposed by the provider on the use
of terminal equipment supplied;

The amendement imposes transparency in contracts about any limitation to network neutrality, but it does not define requirements for such discrimination to be reasonable.

  • Voting recommendation: against or add a recital to define reasonable limitations.

Amendment 128 -

  • Article 1 – point 13 amending Directive 2002/22/EC Article 20 – paragraph 1 – point (b) tabled by Malcolm HARBOUR, PPE-DE, GB
  • Net Neutrality/Discrimination
(b) the services provided, including in particular
- whether or not access to emergency services and
caller location information is being provided and/or
any limitations for provision of emergency services
under Article 26,
- information on any other limitations regarding access
to and/or use of services and applications, where
allowed under national law, 
- the minimum service quality levels offered, namely
the time for the initial connection and, where
appropriate, other quality of service parameters, as
defined by the national regulatory authorities,
- information on any traffic management policies and
on how these may impact on service quality,
- the types of maintenance service offered and customer
support services provided, as well as the means of
contacting these services,
- any restrictions imposed by the provider on the
use of terminal equipment supplied;

Same remarks as for am. 43.

  • Voting recommendation: against or add a recital to define reasonable limitations.

Amendment 129 ++

1. Member States shall ensure that undertakings providing connection
to a public electronic communications network and/or electronic
communications services publish transparent, comparable and up-to-date
information on traffic management policies, applicable prices and
tariffs and any charges due on termination of a contract and information
on standard terms and conditions in respect of access to, and use of,
services provided by them to end-users and consumers in accordance
with Annex II. Such information shall be published in a clear,
comprehensive and easily accessible form and should include when and
under what circumstances traffic management policies are implemented,
and the criteria and rules implemented by the operator for managing
traffic, including the thresholds that will trigger changes in the
users' experience of the services. National regulatory authorities
may specify additional requirements regarding the form in which such
information is to be published.

Unsure of whether the wording is efficient against net discrimination, but it the explicit goal of this amendment in its justification.

  • Voting recommendation: for

Amendment 130 -

  • Article 1 – point 13 amending Directive 2002/22/EC Article 21 – paragraph 3 tabled by Malcolm HARBOUR, PPE-DE, GB
  • Net Neutrality/Discrimination
3. Member States shall ensure that national regulatory
authorities are able to oblige undertakings providing
connection to a public electronic communications network
and/or electronic communications services to inter alia: 
(a) provide applicable tariff information to subscribers
regarding any number or service subject to particular
pricing conditions; with respect to individual categories
of services, national regulatory authorities may require
such information to be provided immediately prior to
connecting the call;
(aa) regularly remind subscribers of any lack of reliable
access to emergency services or caller location information
in the service they have subscribed to;
(b) inform subscribers of any change to limitations regarding
access to and/or use of services and applications, where
allowed under national law;
(ba) provide information on any traffic management policies
and on how these may impact on service quality; 
(c) inform subscribers of their right to determine whether
or not to include their personal data in a directory, and
of the types of data concerned, in accordance with Article 12
of Directive 2002/58/EC (Directive on privacy and electronic
communications); and
(d) regularly inform disabled subscribers of details of products
and services designed for them.
If deemed appropriate, national regulatory authorities may
promote self‑ or co‑regulatory measures prior to imposing
any obligation.

Same remarks as for am. 49.

  • Voting recommendation: against or add a recital to define reasonable limitations.

Amendment 131 ++

3. Member States shall ensure that national regulatory
authorities are able to oblige undertakings providing
connection to a public electronic communications network
and/or electronic communications services to inter alia:
(a) provide applicable tariff information to subscribers
regarding any number or service subject to particular
pricing conditions; with respect to individual categories
of services, national regulatory authorities may require
such information to be provided immediately prior to
connecting the call;
(b) inform subscribers of the provider's traffic management
policies, and any change thereto, so that subscribers are
able to make an informed decision as to whether to to
purchase the service, and/or, where necessary, adjust their
behaviour, deactivate the service, alter the service criteria
or switch networks. Operators shall, where necessary, disclose
specific actions included in the traffic management policy;
(ba) regularly remind subscribers of any lack of reliable
access to emergency services or caller location information
in the service to which they have subscribed;
(c) inform subscribers of their right to determine whether
or not to include their personal data in a directory, and of
the types of data concerned, in accordance with Article 12 of
Directive 2002/58/EC (Directive on privacy and electronic 
communications); and
(d) regularly inform disabled subscribers of details of
products and services designed for them.
If deemed appropriate, national regulatory authorities may
promote self- or co-regulatory measures prior to imposing
any obligation.

Unsure of whether the wording is efficient against net discrimination, but it the explicit goal of this amendment in its justification.

  • Voting recommendation: for

Amendment 132 -

  • Article 1 – point 13 amending Directive 2002/22/EC Article 21 – paragraph 3 tabled by Jacques TOUBON, PPE-DE, FR
  • Net Neutrality/Discrimination
3. Member States shall ensure that national
regulatory authorities are able to oblige
undertakings providing connection to a
public electronic communications
network and/or electronic communications
services to inter alia:

(a) provide applicable tariff information to
subscribers regarding any number or
service subject to particular pricing
conditions; with respect to individual
categories of services, national regulatory
authorities may require such information to
be provided immediately prior to
connecting the call;

(b) inform subscribers of any change to
any relevant limitations imposed by the
undertaking, in accordance with national
law, on a subscriber's ability to access,
use or distribute information or run
applications or services;

(c) inform subscribers of their right to
determine whether or not to include their
personal data in a directory, and of the
types of data concerned, in accordance
with Article 12 of Directive 2002/58/EC
(Directive on privacy and electronic
communications); and

(d) regularly inform disabled subscribers of
details of products and services designed
for them.

If deemed appropriate, national regulatory
authorities may promote self- or
co-regulatory measures prior to imposing
any obligation.

Every limitation is relevant.

  • Voting recommendation: against

Amendment 133 -

3. Member States shall ensure that national regulatory
authorities are able to oblige undertakings providing
connection to a public electronic communications network
and/or electronic communications services to inter alia:
(a) provide applicable tariff information to subscribers
regarding any number or service subject to particular
pricing conditions; with respect to individual categories
of services, national regulatory authorities may require
such information to be provided immediately prior to
connecting the call;
(aa) regularly remind subscribers of any lack of reliable
access to emergency services or caller location information
in the service to which they have subscribed;
(b) inform subscribers of any relevant change to the
provider's traffic management policies and subsequent
possible limitations of access to applications or services;
(c) inform subscribers of their right to determine whether
or not to include their personal data in a directory, and
of the types of data concerned, in accordance with Article
12 of Directive 2002/58/EC (Directive on privacy and
electronic communications); and
(d) regularly inform disabled subscribers of details of
products and services designed for them.
If deemed appropriate, national regulatory authorities
may promote self  or co regulatory measures prior to
imposing any obligation.

Every limitation is relevant.

  • Voting recommendation: against

Amendment 135 +++

1. Member States shall ensure that national
regulatory authorities are, after taking
account of the views of interested parties,
able to require undertakings that provide
publicly available electronic communications
networks and/or services to publish equivalent,
adequate and up-todate information for end-users
on the quality of their services and measures
taken to ensure comparable access for disabled
end-users and to disclose traffic management
policies. That information shall, on request,
be supplied to the national regulatory authority
in advance of its publication. Member States shall
ensure that national regulatory authorities are able
to take appropriate measures in cases where operators
fail to disclose their traffic management policies
 or where the traffic management policy does not
respect the rights of users to access the content,
applications and services of their choice. National
regulatory authorities shall additionally ensure that
there is a facility in place by which users can monitor
and identify any problems created by traffic management
policies in cases where disputes may arise.

Allows to take measures against net discrimination

  • Voting recommendation: for

Amendment 136 == Amendment 137 == Amendment 138 ---

3. In order to address unjustified degradation of 
service and hindering or slowing of traffic over
networks, Member States shall ensure that national
regulatory authorities are able to set minimum
quality of service requirements on an undertaking
or undertakings providing public communications networks.

AT&T amendment. Who determines what is justified or not? For operators, discrimination could be justified by profit (ie. forbidding VoIP on a mobile operator internet access). This is open door for net discrimination.

  • Voting recommendation: against

Amendments 139 and 141 ++

Amendment 139

3a. To ensure quality of services, operators may use traffic
management policies, namely the procedures put in place by
the provider in order to measure and control traffic on a
network link so as to avoid filling the link to capacity or
overfilling the link, which would result in network congestion
and poor performance.

Amendment 141

3b. Traffic management policies are deemed appropriate and
reasonable as long as it can be proved that they are not
anti-competitive or do not give preferential treatment to the
services or applications of the network operators or their
commercial partners over the services and applications of
other providers.

Both amendments are needed for the traffic management policies to be non-discriminatory. Those two amendments work together.

  • Voting recommendation: for

Amendment 140 --

  • Article 1 – point 13 amending Directive 2002/22/EC Article 22 – paragraph 3 b (new) tabled by Cristian Silviu BUŞOI, ALDE, RO
  • Net Neutrality/Discrimination
3b. These policies are deemed appropriate and reasonable as long as
it can be proved that they are not anti-competitive and do not hinder
the competitive development of the information society.

Weak complement to amendment 139, to reject in favor of 141.

  • Voting recommendation: against

Amendment 142

  • Article 1 – point 13 amending Directive 2002/22/EC Article 22 – paragraph 3 c (new) tabled by Heide RÜHLE, Verts/ALE, DE
  • Net Neutrality/Discrimination
3c. The minimum quality of services requirements may oblige
operators to use traffic management policies, namely
the procedures put in place by the provider in order to 
measure and control traffic on a network link so as to avoid
filling the link to capacity or overfilling the link, which
would result in network congestion and poor performance.

Just repeats some statements of amendment 139, in order to state that traffic management policies are taken to assure minimum QoS. This does not add any limit to restrictions that ISPs are allowed to take. Therefore this amendment can either be voted or rejected.

  • Voting recommendation: none.

Amendment 146 +++

  • Article 1 – point 21 a (new) amending Directive 2002/22/EC Article 32 a (new) tabled by Heide RÜHLE, Verts/ALE, DE
  • Fundamental Rights/Net Neutrality/Discrimination
(21a) the following Article shall be inserted:
Article 32a
Access to content, services and applications
Member States shall ensure that any restrictions 
to users' rights to access content, services and
applications, if they are necessary, shall be
implemented by appropriate measures, in accordance
with the principles of proportionality,
effectiveness and dissuasiveness. These measures
shall not have the effect of hindering the development
of the information society, in compliance with
Directive 2000/31/EC, and shall not conflict with
citizens' fundamental rights, including the right to
privacy and the right to due process."

repeats amendment 166 of first lecture, and 72 of Harbour

  • Voting recommendation: for

Amendment 147 ---

  • Article 1 – point 21 a (new) amending Directive 2002/22/EC Article 32 a (new) tabled by Jacques TOUBON, PPE-DE, FR
  • Fundamental Rights/Net Neutrality/Discrimination
(21a) the following Article shall be inserted:
"Article 32a
Member States shall ensure that any restrictions on the rights
of users to access content, services and applications, if such
restrictions are necessary, are implemented by appropriate
measures, in accordance with the principles of proportionality,
effectiveness and dissuasiveness. The measures shall be aimed
at enhancing the development of the information society, in
compliance with the EC legal order, and shall fully respect
the fundamental rights protected by the Community legal order,
including the right to privacy, the right to property, the
right to due process and the right to an effective remedy."

Attempt to insert right to property and sanction in the fundamental rights.

  • Voting recommendation: against

Amendment 148 +++

3. Without prejudice to national rules in conformity
with Community law promoting cultural and media policy
objectives, such as cultural and linguistic diversity 
and media pluralism, national regulatory authorities
and other relevant authorities may promote cooperation
between undertakings providing electronic communications
networks and/or services and sectors interested in the
promotion of lawful content in electronic communication
networks and services. That cooperation may also include
coordination of the public interest information to be
provided pursuant to Article 21(4)(a) and Article 20(1).

Deletes the last reference to lawful on which is based the graduated response.

  • Voting recommendation: for

Amendment 150 +++

7. Traffic data may be collected, stored 
and used in specific cases to the extent 
strictly necessary to ensure network and 
information security, as defined by Article 
4(c) of Regulation (EC) No 460/2004 of 
the European Parliament and of the 
Council of 10 March 2004 establishing the 
European Network and Information Security 
Agency. Traffic data stored pursuant to 
this paragraph must not be used for any 
other purpose and must be erased or made 
anonymous no later than seven days after 
its collection.

The Council common position on this point would allow the telecommunications industry to collect a potentially unlimited amount of sensitive, confidential communications data including our telephone and e-mail contacts, the geographic position of our mobile phones and the websites we visit on the Internet. Apart from the creation of vast data pools that could go far beyond what is being collected under the directive on data retention, the proposal would also permit the disclosure of traffic data to other companies, government authorities and individuals.

In his opinion of 9 January 2009, the EDPS "recommends to reject this Article". He confirms that "Article 6.6(a) is unnecessary and subject to risk of abuse" and goes on to say: "Any existing or future article is unlikely to remove the obvious risks of an overly broad application of the exception for reasons other than purely security related or by entities that should not be able to benefit from the exception. [...] Taking into account on the one hand the risks that Article 6.6(a) poses to the fundamental right to data protection and privacy of individuals, and on the other hand the fact that, as explained in this Opinion, from a legal point of view, this Article is unnecessary, the EDPS has come to the conclusion that the best outcome would be for the proposed Article 6.6(a) to be deleted altogether."

With amendment 150,

  • retention is limited to "specific cases" and my thus not take place permanently,
  • maximum retention period of seven days is specified, so data may not be stored forever,
  • the disclosure of data to third parties is not covered ("may be collected, stored and used"),
  • data retained for security purposes cannot later be used for other purposes such as disclosure to government authorities (purpose limitation included).

However, even this wording has major downsides:

  • there would be no specification of who may process data, not limited to telecommunications providers,
  • unclear purpose of processing, purpose not specified to be the protection of the provider's own systems,
  • user interest could not outweigh provider interest,
  • member states would not be allowed to protect privacy better.

So MEPs should

  1. work towards the tabling of an amendment (e.g. group amendment in plenary) to delete article 2 point 6 of the Council common position altogether,
  2. in the meantime, vote for amendment 150 tabled by Ms Svensson in IMCO (vote scheduled for 31 March 2009), and
  3. work towards the withdrawal or the rejection of amendment 85 tabled by the rapporteur in IMCO.

For details see joint press release "EU proposal puts confidential communications data at risk" and background paper.

  • Voting recommendation: vote for this amendment and reject amendment 85.