Telecom

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monica horten opinion on this text. i (simona) agree with her: "It has some very obvious grammar and spelling errors (some very basic) which need correction before it goes anywhere.

It needs a much stronger policy argument. It needs to be very clear to the MEP what is the policy proposition that you would like them to support. At the moment, this is not clear. (By policy proposition, I do not mean 'words', I mean explain the position they should take on '3-strikes copyright enforcement' and 'principle of net neutrality' etc).

I think you are also falling for the Council's trap of focussing narrowly on the text, and not the policy principle.

Note that the Council spent the summer planning this and have a/ set this trap and b/ adopted Harbour.

There does appear to be a technical legal problem with the wording of Amendment 138, in the context fo Art 95 of the Treaty and the ECHR. If you are not careful, it will be used as the excuse to get rid of it.

(Even if their argument is not correct)... You could spend a lot of effort arguing why it is wrong, which MEPs will find difficult, or you can try to find different ways of making the argument (and arming MEPs with arguments). And you could consider alternative ways to write your text which will appear to address this particular objection.

In order to get a text that will work, you need to understand the other side's other requirements / objections as well as you did when Am 138 was composed.

My understanding is that the Council is using the 'Hadopi test' for any text. This legal test means that it will either block or it will permit three strikes copyright enforcement with an administrative authority such as a Hadopi, or alternatively, it will block/permit three-strikes British Style using deep packet inspection (as per Mandelson's proposals). The British either are driving the Council, or think they are, either way, their objections must be addressed or conciously opposed (and your proposal does not address them).

Using such a 'hadopi test', may be one way you can begin to form a different way of arguing this.

Hope this helps. Monica"

[edit] Dear Member of the European Parliament

• Maintain amendment 138 of the Telecompackage.
• Do not adopt an empty version on Nov 4.

[edit] The original version of 138

The purpose of Amendment 138 to the Telecom package was to ensure that EU-citizens have a right of access to the internet that neither public nor private bodies could deprive them of without a prior decision of the judicial system. Amendment 138 was, in both first and second readings, adopted by the EU-parliament with a majority of 88% of the members of the European Parliament. The text adopted was:

“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.”

[edit] The empty version of 138

Since the Council could not accept this, amendment 138 was put on the agenda in the 3rd reading, the conciliation process between the Parliament and the Council. During this process, the legal service of the EU-parliament cast doubt on whether imposing "a prior ruling by the judicial authorities" on the member states is permissible under article 95 of the European Union Treaty. (EP Legal service opinion)

After a couple of proposals, the compromise proposed by rapporteur Catherine Trautmann, is:

"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 of the above measures liable to restrict those fundamental rights or freedoms may therefore only be imposed if they are appropriate, proportionate and necessary 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. Accordingly, these measures may only be taken with due respect for the principle of presumption of innocence and shall respect the requirements of a fair and impartial procedure including the right to be heard of the person of persons concerned and the right to an effective and timely judicial review.

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

However, the last paragraph actually invalidates the rest of the article, since it explicitly states that a national legal framework may invalidate the protection of the citizens' right to access to the net. This means that not only governments, but also an association of companies may exclude citizens from the net. Therefore, the last paragraph must be removed. In the European legal service's opinion, there is mentioned no legal provisions that necessitates the content of the last paragraph.