This record is a partial extract of the original cable. The full text of the original cable is not available.

UNCLAS SECTION 01 OF 02 BRUSSELS 004296 
 
SIPDIS 
 
STATE FOR INL/PC SCOTT HARRIS 
DOJ FOR D/A/AG BRUCE SWARTZ 
 
E.O. 12958: N/A 
TAGS: PREL PTER CMGT CVIS KCRM EUN USEU BRUSSELS
SUBJECT:  EU MOVES TOWARD LEGISLATION ON RETENTION 
OF TELECOMS DATA 
 
REF: USEU BRUSSELS 3743 
 
SUMMARY 
------- 
 
¶1.  The UK Presidency in the December 2 meeting of 
EU Justice and Home Affairs ministers (JHA Council) 
secured a majority agreement on a compromise to 
approximate member states' legislation on the 
retention of telecom data.  Ministers agreed to 
require the storage of traffic information for a 
minimum of 6 to 24 months, but did not set a maximum 
time period, thereby accommodating member states 
with legislation on longer storage.  UK Home 
Secretary/JHA Chair Charles Clarke was confident the 
 
SIPDIS 
package would win the necessary backing of the EP 
next week.  Full text of Council conclusions has 
been transmitted to EUR/ERA.  End summary. 
 
RETENTION OF TELECOM DATA 
------------------------- 
 
¶2.  The EU JHA Council on December 2 agreed on 
proposals for submission to the European Parliament 
on a draft Directive requiring telecommunications 
companies to retain phone and Internet traffic data 
for a minimum period of 2 years and 6 months 
respectively.  The draft is intended to facilitate 
judicial cooperation in criminal matters by 
approximating member states' legislation on the 
retention of data.  The text covers traffic and 
location data generated by telephony, SMS and 
Internet, but does not/not cover the content of the 
calls.  Up to 15 member states currently do not have 
mandatory rules on the retention of data, including 
the UK, which has a voluntary code. 
 
¶3.  The British Presidency, which set the adoption 
of EU legislation setting a data retention 
obligation as a key objective of its six-month term, 
watered down its initial ambitions (REFTEL) to 
secure a qualified-majority agreement on revised 
measures in the Council and meet the EP's concerns. 
Key elements of the compromise package are as 
follows: 
 
--   Retention periods:  member states will ensure 
     to retain transmission data for periods of not 
     less than 6 months (internet) and for a maximum 
     of two years (telephony) from the date of the 
     communication; 
 
--   Internet data:  the Council is in favor of an 
     obligation to retain data on Internet access, 
     Internet e-mail and Internet telephony; 
 
--   Unsuccessful calls:  the Council is in favor of 
     including the retention of data in relation to 
     unsuccessful call attempts where the data are 
     "generated or processed, and stored (telephony 
     data) or logged (Internet data) by providers of 
     publicly available electronic communications 
     services or of a public communications network 
     within their jurisdiction in the process of 
     supplying the communication services 
     concerned."  The Directive would not require 
     the retention of data in relation to 
     unconnected calls; 
 
--   Serious criminal offences:  A reference to 
     serious crime was included in the draft, as 
     defined by each member state in its national 
     legislation.  The EP is pushing for access by 
     law enforcement agencies to the data to be 
     restricted to serious crime -- the 32 offences 
     listed in the EU legislation on the European 
     Arrest Warrant.  The Council compromise 
     specifies that member states "shall have due 
     regard" to that list and crime involving 
     telecommunication. 
 
¶4.  Ministers also confirmed their decision to leave 
it up to each member state to compensate their 
national telecom providers for increased costs if 
they so wish. 
 
¶5.  The Council compromise was resisted by Ireland, 
Slovenia and Slovakia, who insisted the matter 
should be dealt with under inter-governmental 
cooperation, thus objecting to the involvement of 
the EP.  Irish Justice minister McDowell reiterated 
his threat to take the issue to the EU Court of 
Justice. 
 
¶6.  With the Commission firmly backing the Council's 
compromise and based on consultations with key EP 
leaders, the Presidency will now seek the necessary 
approval of Parliament and reach a "first reading 
deal" under the co-decision procedure by the year's 
end.  UK Home Secretary/Council Chair Charles Clarke 
was confident Parliament would agree the package in 
Strasbourg next week.  This "will make a very clear 
statement that all of the institutions of the EU, 
the Council, the Commission and the Parliament stand 
firm in the fight against terrorism and defeat of 
organized crime," Clarke stated.  Spanish Justice 
Minister Juan Fernando Lopez, noting that data 
retention had been crucial in investigating the 
March 2004 attacks in Madrid, said: "A consensus 
that allows for one step forward is better than 
nothing." 
 
OTHER JUSTICE ITEMS 
------------------- 
 
¶7.  In its discussions of other "justice items," the 
Council: 
 
--   Reached a "general approach" on a draft 
     Regulation aimed at simplifying and reducing 
     the costs of litigation in cross-border cases 
     concerning uncontested money claims and 
     permitting the free circulation of European 
     orders for payment throughout all member 
     states; 
 
--   Reached agreement on a number of specific 
     issues under a draft Regulation establishing a 
     European procedure simplifying litigation on 
     small claims in cross-border cases; 
 
--   Reached a "common understanding" -- subject to 
     further clarification of some issues -- on a 
     draft Directive concerning mediation in civil 
     and commercial matters; 
 
--   Noted progress on a Framework Decision on 
     procedural rights in criminal proceedings 
     throughout the EU; 
 
--   Remained split on a Framework Decision on the 
     European Evidence Warrant (EEW) for obtaining 
     objects, documents and data for use in 
     proceedings in criminal matters.  The aim is to 
     establish a mechanism to facilitate the 
     obtaining of evidence in cross-border cases 
     based on mutual recognition principles. 
 
MCKINLEY