Data retention provokes an EU identity crisis

Date: 13/10/05

The European Union's policy on freedom, security and justice has some inbuilt features that undermine its coherence and effectiveness.

First, a political struggle taking place in order to ensure that the intergovernmental method continues to reign over transnational policies on "security". Second, the legal complexity and obscurity of policymaking in this area, product of the divide between the 'first pillar' and 'third pillar'. The first pillar is managed by the EU institutions, while the third works through inter-governmental co-operation, with little involvement from the European Commission, Parliament and the European Court of Justice (ECJ).

This divide explains, in part, why the Commission and the Council of Ministers have recently presented parallel and competing legislative proposals on the retention of data processed and stored in connection with electronic communications, as part of the counter-terrorism package. This data would be mainly related to mobile and fixed telephony and internet communication. Both plans have a great impact on fundamental rights.

The proposal from the Council would fall within the third pillar and would materialise in the form of a framework decision. The use of the third pillar has been criticised, since decision-making in this framework lacks transparency and democratic oversight, excluding the European Parliament and the ECJ. It also hampers efficiency, since decisions are made by unanimity voting. In addition, the EU rules on data protection (Directives 95/36 and 2002/58) do not apply to third pillar-related issues.

Under the initiative on data retention presented by the Commission, which falls within the first pillar, the Parliament would be involved through the co-decision procedure and the EU rules on data protection would apply. This represents an improvement as far as democratic accountability is concerned.

The proposed EU constitution, which was rejected by popular votes in France and the Netherlands, has suggested a simplification of the EU's system by doing away with the second and third pillars (on foreign policy and on justice and home affairs).

Bringing justice and home affairs matters under the first pillar would guarantee the democratic accountability of laws, which would be adopted with the involvement of the Parliament. Their implementation would be overseen by the European Court of Justice. Such laws would represent a more legitimate policy response to terrorism.

But such laws should also comply with the principle of proportionality, striking a balance between ends and means, and being the least restrictive to freedom. From this perspective, the data retention proposals from both Council and the Commission are disproportionate. First, the collection of data is indiscriminate. Member states would have to store every bit of telecommunication transaction data. Second, the possible of use of the retained data is extremely wide - "investigation, detection and prosecution of crime and criminal offences including terrorism". One of the greatest weaknesses of the proposal is that it sets out to "detect" criminals and terrorists by potentially putting the entire EU population under surveillance.

It is important to strike a balance between liberty and security while developing a transnational framework to fight terrorism and it appears that both proposals on data retention missed it.

Those who promote the retention of data claim that it does not hinder the right of privacy as provided by Article 8 of the European Convention on Human Rights. But the European Court of Human Rights has determined that the recording of traffic data violates Article 8.1 (Rotaru v. Romania, 4 May 2000) of the Convention. The court has also found indiscriminate surveillance unlawful if it lacked proper safe- guards (Kruslin v. France, 24 April 1990).

The fight against terrorism is challenging for liberal democracies. It requires political drive, financial resources and policies that do not undermine respect of the rule of law and fundamental rights.

The data retention schemes from the Commission, and in particular form the Council, may undermine values that are crucial to the EU's identity.

• Thierry Balzacq and Sergio Carrera are research fellows at Centre for European Policy Studies (CEPS).

Analysis feature in which the authors, who are research fellows at Centre for European Policy Studies (CEPS), suggest that the European Union's policy on freedom, security and justice has some inbuilt features that undermine its coherence and effectiveness. To underline this they use the example of recent legislation on a retention scheme for telecommunications data, proposed under the third, intergovernmental pillar of the EU and the first, Community pillar by the Council and the European Commission respectively.