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| − | '''Amendment 138 is too prescriptive regarding the judicial procedures that member States should follow. The amendment is based on article 95 CE, and so the Parliament lacks competence to adopt this provision”'''
| + | #REDIRECT [[Amendment_138_is_compatible_with_95_CE]] |
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| − | This argument questions the relevance of amendment 138 on the ground of the European Union institutional architecture. While telecoms regulation (and therefore the Telecoms Package) pertains to the Community's area of competence, amendment 138 refers to judicial procedures. Under the current version of the Treaty on European Union (TEU), judiciary affairs are an intergovernmental area, for which the Parliament has usually little powers.
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| − | It should first be noticed that the argument that the amendment would interfere with national competences in judicial matters is not credible. Other directives entail consequences on national judicial procedures. For instance, the copyright (or IPRED<ref>Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society</ref>) directive's provisions1 oblige member States to ensure that right-holders can bring actions before national courts<ref> Article 8 provides that:” 1. Member States shall provide appropriate sanctions and remedies in respect of infringements of the rights and obligations set out in this Directive and shall take all the measures necessary to ensure that those sanctions and remedies are applied. The sanctions thus provided for shall be effective, proportionate and dissuasive. 2. Each Member State shall take the measures necessary to ensure that rightholders whose interests are affected by an infringing activity carried out on its territory can bring an action for damages and/or apply for an injunction and, where appropriate, for the seizure of infringing material as well as of devices, products or components referred to in Article 6(2). 3. Member States shall ensure that rightholders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe a copyright or related right.</ref>. '''Interestingly, the “IPRED” directive was adopted on the basis of article 95 CE, which is also the relevant article for the Telecoms package.'''
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| − | In this case, the Parliament has the undeniable right to adopt '''amendment 138, which actually directly relates to the regulation of telecommunications by ensuring that users will not suffer from restrictions to their Internet access'''. It is located in Article 8.4 of the Framework directive that lists the different principles that national regulatory authorities should follow in order to promote the interests of EU citizens. Amendment 138 thereby protects consumers against commercial malpractices or abusive administrative sanctions. Its aim is simply to avoid discretionary restrictions of end-users' Internet access that could be unilaterally decided by telecoms operators or administrative authorities. The European Union should not loose an opportunity for safeguarding the basic rights and freedoms of all Internet users, especially in a package that contains a directive specifically aimed at protecting consumers' rights.
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| − | '''It follows that amendment 138 does contribute to the functioning of the internal market, and that its purpose is totally pursuant to article 95 CE''' <ref>Especially when one considers that article 95 CE is broadly interpreted by the Court. The ECJ accepts that harmonizing measures pursuant to article 95 CE can have an impact on other Treaty provisions that do not pertain do the Community's filed of competence. See http://merlin.obs.coe.int/iris/2007/2/article4.en.html</ref>.
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| − | In countries where the judicial authority is independent from the legislative authority and the executive authority (i.e all real liberal democracies)only a judge have the competence to assess infringements on fundamental rights.
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| − | A judge only can establish whether exceptions to freedom of expression and communication are proportionate.
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