Amendment 138 is compatible with 95 CE

Council's argument: 'Amendment 138, by imposing a prior ruling of the judicial authorities, is too prescriptive regarding the judicial procedures that member States should follow. The amendment is based on Article95CE, and so the Parliament lacks competence to adopt this provision'

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.

However:

The Community does have the power to impact Member States' legal order.
First, it should be noted thatthere is nothing radically new in the affirmation, emphasized by amendment 138, that in a country that obeys the rule of Law any restriction to fundamental rights falls under the regime of a judicial due process. Indeed, no one other than the judicial authority can guarantee that the basic rights of the suspect - most notably the right to a due process - will be protected, and that the sentence will be proportionate to the original offense (see below).

This principle arguably already applies to all member States by virtue of Community law, and so it is rightly reasserted in the Telecoms package. The Commission also concurred, saying that “[amendment 138] is an important restatement of key legal principles inherent in the legal order of the European Union, especially of citizens' fundamental rights '''. On that account, there is no reason for the Council to be reluctant to amendment 138.

Yet, although the intervention of the judiciary authorities in matters relating to citizens' fundamental rights and freedoms is arguably a common tradition across the European Union (and is therefore part of Community law), representatives of the Council as well as the Parliament's legal services have argued that the Community had no powers on the Member States judicial system.

This argument seems to contradict existing texts and case law. It is true that the Telecoms Package falls under the Community's competence by virtue of article 95 CE, which describes the procedures for all legislation relating to the internal market. However, even though judicial procedures are not explicitly covered by this article, the European Court of Justice (ECJ) makes a rather broad interpretation of article 95 CE. Interestingly, the Court accepts that harmonizing measures pursuant to article 95 CE can have an impact on other Treaty provisions that do not pertain to the Community's filed of competence, and so amendment 138 as it stands seems to fit current Community case law. Moreover, many EU directives already entail consequences on national judicial procedures. For instance, the 2001 copyright directive's provisions oblige member States to ensure that right-holders can bring actions before national courts.

In this case, under 95 CE, 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.

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

The Community can and should impose a prior ruling by a judge before any restriction of end-users' Internet access is restricted
The most fundamental aspects of amendment 138 lies in the requirement of a “prior ruling” to ensure the legality of any imposed restriction of one's Internet access, which makes explicit general principles of community law. This core principle is absolutely necessary for two main reasons.

First, any restriction of end-users' Internet access is a deprivation of liberty. Even when they are not criminal sentences instituted by law, such restrictions undermine people's freedom of expression and communication and right to protection of their privacy in the digital environment, especially because of the collateral damages that are inherent to any technical means that allow such restrictions, in a more or lesser extent. This means that these restrictions represent very severe measures, which should carry the most important safeguards, except in case of compelling public interest motives.

Second, to respect general principles of Community law, any such restrictions should be proportional to the aim pursued. A prior judgement is thus necessary to ensure that the restrictions are proportionate and legitimate, which is extremely complex to establish in the case of online activities. Again, the technical complexity of the online world challenge traditional legal principles, and considering the fundamental rights at stake it is indispensable that a careful examination by a competent authority be the only one entitled to order restrictions to individual's Internet access.

The right to an effective remedy, guaranteed by Community law and which refers to a subsequent review of a decision already taken, describes the possibility to challenge a decision that limits one's fundamental right. But if the original decision does not properly assesses the proportionality of restrictions to one's Internet access and is nevertheless put into effect, then it means that a deprivation of one's liberty would be inflicted in possible violation a basic principle of interpretation of the ECHR>. Indeed, the principle of a prior judgement reflects the guarantees usually required by the European Court of Human Rights in similar situations, within the framework of its assessment of the proportionality of an interference with a fundamental freedom. In that respect, the sole right to an effective remedy does not appear to be in itself sufficiently protective of the freedoms of Internet-users.

Therefore, the final text should ensure that any restriction to end-users' access to the Internet are applied subsequently to a the competent authority's ruling, provided that such authority is the one which is traditionally in charge of the assessment of proportionality in balancing freedoms in the given county, in respects of the procedural safeguards described in article 6 ECHR. In most countries, if not all, it will mean that the judiciary authority will be the only one empowered to impose restrictions to one's access to the Internet, or at least that citizens will be able to file a suspensive appeal before the judiciary to challenge the implementation of these restrictions.