How French Presidency Hides a Political Laundering Inside EU Telecoms Package

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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.1This scheme is clearly pointed out on article in German newspaper Welt by Roman Herzog, former president of the federal republic of Germany and judge of the Constitutional Court and Lüder Gerken, professor and director of CEP, Institute for European Political Studies.
http://www.openeurope.org.uk/analysis/herzog.pdf

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 CNIL2See article on Le Monde: An unreleased report revives criticisms against anti-piracy bill (in French).
http://www.laquadrature.net/fr/un-rapport-non-diffuse-relance-les-critiques-sur-la-loi-antipiratage-technologies-le-mondefr
− 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 Package3Privacy: Film industry pirates European law.
http://www.laquadrature.net/en/privacy-film-industry-pirates-european-law
, 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 highlighted4The “Telecoms Package”: out of the shadows, into the light.
http://www.laquadrature.net/en/the-%E2%80%9Ctelecoms-package%E2%80%9D-out-shadows-light
, confirmed by a thorough analysis of European Data Protection Supervisor (EDPS)5European Data Protection Supervisor (EDPS) comments, 2 September 2008.
http://www.laquadrature.net/wiki/EDPS_Comments_Telecoms_Package_IMCO
. Although still present in the text voted by European Parliament in its first reading, these threats have been lowered down6Telecoms Package: European democracy’s victory already threatened.
http://www.laquadrature.net/en/telecoms-package-european-democracys-victory-already-threatened
and even almost blocked by amendment 1387Story of Anti-3-Strikes Amendments.
http://www.laquadrature.net/wiki/Story_of_Anti-3-Strikes_Amendments
, supported by a huge cross-party majority − 88% of Members of European Parliament (MEPs)8Actually, almost all opponents who have voted against amendment 138 are French MEPs from EPP-ED, obeying to French executive power.
http://www.laquadrature.net/wiki/Telecoms_package_directives_1st_reading_details_by_name
.

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 Council9Graduated Response: Europe must resist Sarkozy’s authoritarianism.
http://www.laquadrature.net/en/graduated-reponse-europe-must-resist-sarkozys-authoritarianism
. Barroso declined this request10Graduated Response: The Lesson.
http://www.laquadrature.net/en/graduated-response-lesson
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 13811Graduated Response: Will France disconnect Europe?
http://www.laquadrature.net/en/graduated-response-will-france-disconnect-europe
. 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 public12It can be argued that EU transparency policy offers any European citizen the right to ask for documents, but experience − for directive on software patents or anti-counterfeiting trade agreement (ACTA) − shows that the answer is always that “at this stage disclosure of these documents which give details of progress made would be premature in that it could impede the proper conduct of the negotiations and compromise the conclusion of an agreement on this sensitive subject”.
http://people.ffii.org/~jmaebe/swpat/council20040423.html
http://press.ffii.org/Press_releases/EU_Council_refuses_to_release_secret_ACTA_documents
. Medias have been instructed by contradictory information: on one hand about 20 Member States would be in favor of amendment 13813According to an article in Mac Plus (in French).
http://www.laquadrature.net/fr/riposte-graduee-le-coup-detat-vivendiste
, on the other hand Sarkozy is said to have quasi-unanimity to reject this same amendment 13814According to an article in La Tribune.
http://www.iptegrity.com/index.php?option=com_content&task=view&id=195&Itemid=9
. 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“In the course of ‘Telecoms Package’, European citizens have already achieved some tremendous results: debunking this law project, getting an extension for 1st reading, alerting MEPs so they could understand what was at stake, pointing out where the threats were hidden and what could be the safeguards, etc. People from many European countries have already joined this effort. They showed the face of the actual democratic Europe. And they do it despite the maneuvers from those who are unaccountable at EU level: governments and lobbies from entertainment industries. Now, European citizens have to make themselves heard louder!”
http://www.laquadrature.net/wiki/Campaign-Save_amendment_138_and_Internet_Freedom_from_Council_of_EU
.

References   [ + ]

1. This scheme is clearly pointed out on article in German newspaper Welt by Roman Herzog, former president of the federal republic of Germany and judge of the Constitutional Court and Lüder Gerken, professor and director of CEP, Institute for European Political Studies.
http://www.openeurope.org.uk/analysis/herzog.pdf
2. See article on Le Monde: An unreleased report revives criticisms against anti-piracy bill (in French).
http://www.laquadrature.net/fr/un-rapport-non-diffuse-relance-les-critiques-sur-la-loi-antipiratage-technologies-le-mondefr
3. Privacy: Film industry pirates European law.
http://www.laquadrature.net/en/privacy-film-industry-pirates-european-law
4. The “Telecoms Package”: out of the shadows, into the light.
http://www.laquadrature.net/en/the-%E2%80%9Ctelecoms-package%E2%80%9D-out-shadows-light
5. European Data Protection Supervisor (EDPS) comments, 2 September 2008.
http://www.laquadrature.net/wiki/EDPS_Comments_Telecoms_Package_IMCO
6. Telecoms Package: European democracy’s victory already threatened.
http://www.laquadrature.net/en/telecoms-package-european-democracys-victory-already-threatened
7. Story of Anti-3-Strikes Amendments.
http://www.laquadrature.net/wiki/Story_of_Anti-3-Strikes_Amendments
8. Actually, almost all opponents who have voted against amendment 138 are French MEPs from EPP-ED, obeying to French executive power.
http://www.laquadrature.net/wiki/Telecoms_package_directives_1st_reading_details_by_name
9. Graduated Response: Europe must resist Sarkozy’s authoritarianism.
http://www.laquadrature.net/en/graduated-reponse-europe-must-resist-sarkozys-authoritarianism
10. Graduated Response: The Lesson.
http://www.laquadrature.net/en/graduated-response-lesson
11. Graduated Response: Will France disconnect Europe?
http://www.laquadrature.net/en/graduated-response-will-france-disconnect-europe
12. It can be argued that EU transparency policy offers any European citizen the right to ask for documents, but experience − for directive on software patents or anti-counterfeiting trade agreement (ACTA) − shows that the answer is always that “at this stage disclosure of these documents which give details of progress made would be premature in that it could impede the proper conduct of the negotiations and compromise the conclusion of an agreement on this sensitive subject”.
http://people.ffii.org/~jmaebe/swpat/council20040423.html
http://press.ffii.org/Press_releases/EU_Council_refuses_to_release_secret_ACTA_documents
13. According to an article in Mac Plus (in French).
http://www.laquadrature.net/fr/riposte-graduee-le-coup-detat-vivendiste
14. According to an article in La Tribune.
http://www.iptegrity.com/index.php?option=com_content&task=view&id=195&Itemid=9
15. “In the course of ‘Telecoms Package’, European citizens have already achieved some tremendous results: debunking this law project, getting an extension for 1st reading, alerting MEPs so they could understand what was at stake, pointing out where the threats were hidden and what could be the safeguards, etc. People from many European countries have already joined this effort. They showed the face of the actual democratic Europe. And they do it despite the maneuvers from those who are unaccountable at EU level: governments and lobbies from entertainment industries. Now, European citizens have to make themselves heard louder!”
http://www.laquadrature.net/wiki/Campaign-Save_amendment_138_and_Internet_Freedom_from_Council_of_EU