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How French Presidency Hides a Political Laundering Inside EU Telecoms Package

Everybody agrees that European Union suffers from a democratic deficit which deepens the gap between European institutions and their citizens. What is more unknown is that one of main reasons for this is that Member States often use European Union to achieve what can be spelled as “political laundering”. The “Telecoms Package” gives a perfect example of such a deceptive maneuver, aimed at legalizing an european-wide "graduated response" against citizens, and stretching it even deeper as usual. How does it work?

One fundamental principle of democracy is the balance between powers. If and when executive governments want to impose unacceptable threats to citizens' freedoms, legislative power should be able to stop this attempt and judiciary authorities can counterbalance it with fundamental rights. But EU institutions offers Member States some means to circumvent this balance. Governments are indeed one of legislative bodies who write EU laws − and actually the most powerful body, compared to European Parliament. Therefore when a Member State feels that a law could be blocked by its national parliament, he just wears his EU legislative hat to pass the law at EU level and then come back to his home country claiming that EU leaves him no other choice than implementing it at national level.1

As soon as he became French President, Nicolas Sarkozy showed an obsession: fighting Internet file sharing by cutting off alleged infringers' Internet access, once they've been alerted twice − the graduated response, also called “3 strikes and you're out”. This project has raised an heavy opposition ranging from administrative authorities like CNIL2 − the French data protection body − or the Council of State − who's in charge of examining whether law proposal comply with Constitution − to Internet Service Providers or Internet users. So the usual political laundering was attempted as described above.

Some amendments were covertly introduced into the Telecoms Package3, a bundle of EU directives about to be discussed at European Parliament to reform the EU’s regulatory framework for electronic communications networks and services. Thanks to European citizens' mobilization, provisions threatening ”Net neutrality”, weakening the protection of personal data and privacy or erecting the foundations of a 3 strikes approach were highlighted4, confirmed by a thorough analysis of European Data Protection Supervisor (EDPS)5. Although still present in the text voted by European Parliament in its first reading, these threats have been lowered down6 and even almost blocked by amendment 1387, supported by a huge cross-party majority − 88% of Members of European Parliament (MEPs)8.

Furthermore, the 3 strikes approach was intrinsically designed to wash whiter than white. To be effective, the accusatory and punitive measures should circumvent the judiciary. That is clearly demonstrated by French law proposal, establishing a new administrative authority, leaving punished Internet users only a little room for any recourse behind a court, once the damage is done with their Internet access has been cut off. Adversely the object of amendment 138 is just a recall of the right to due trial.

Then the political laundering had to turn faster. In the middle of October financial crisis, Sarkozy took time to write and speak to the president of European Commission, José Manuel Barroso, to ask him to remove amendment 138 from the text that was now to be agreed by EU Council9. Barroso declined this request10 since it would be contrary to EU codecision procedure: Commission has no role to play here. And since Commission should be renewed next year, Commissioners who want to keep their position should get approbation from European Parliament and cannot be accused to be involved in a political laundering. Instead ministers of other 26 Members States have to be convinced by French President.

To achieve this, Sarkozy gambled a rush in French Parliament. He declared the emergency procedure, meaning that the text would only be examined once by each chambers, the Senate and the National Assembly. The Senate voted almost unanimously for the 3 strikes approach, despite a few senators from Sarkozy's majority slightly opposed about the exact implementation of graduated response. But after an intervention from government, everybody toed the line and followed Minister of Culture, Christine Albanel, denying any legal implication of amendment 13811. For the French bill to be finally adopted, National Assembly has still to examine the text, but this won't happen before beginning of 2009, officially due to a tight schedule. Meanwhile, encouraged by this approbation from the French Senate, a qualified majority in EU Council is expected to be reached in order to reject amendment 138 and to pass foundations for the 3 strikes approach. So the political laundering could be resumed.

And a good laundering machine has to act as a black box. This is definitely the situation in EU Council: nobody knows what happens during negotiations. Working document are not public12. Medias have been instructed by contradictory information: on one hand about 20 Member States would be in favor of amendment 13813, on the other hand Sarkozy is said to have quasi-unanimity to reject this same amendment 13814. Government representatives argue that there is no more copyright enforcement matters in the telecoms package, academical studies proves the exact opposite. At this stage, EU Council should pronounce its final decision on November 27th

La Quadrature du Net condemns this political laundering and call European citizens to contact their ministers and national parliaments to inform them and to require from them a transparent position about fundamental democratic principals recalled by amendment 13815.