The Closing of the Net  "original and valuable"  Times Higher Education

Without Amendment 138, the Telecoms Package permits restrictions on Internet access and it allows graduated response/3-strikes measures. How should the European Parliament handle its negotiations with the Council?

***28 September - The Green Group/Pirate Party have called on the Council to provide an explanation of why it opposes Amendment 138. Details  below.***


The European Parliament meets tomorrow to vote for the team who will negotiate with the Council,  and give it a mandate. A key question is what should be the scope of the discussions. Should they open it up beyond Amendment 138?


Amendment 138 codifies principles which

people believe in. This is the real problem facing the EU. Amendment 138  has come to stand for an open Internet, which will support innovation and the European Information Society  and the digital economy. It also has come to stand for due process and the separation of powers of the state and the judiciary, which is important in a democracy.


Amendment 138  did not start out to do this. It's original intention was to safeguard users against disproportionate copyright enforcement measures, which are  allowed by other amendments to the Telecoms Package. But now that it is at the centre of a political battle, these are the issues that are at stake, even though they are unpalatable to the Council and to the Commission and to the European Parliament's rapporteurs.   


The issue for MEPs is this. Which policy principles are the right ones to set the future for Europe in the digital economy. Are they the restrictive and arguable destructive policies   proposed by the rapporteurs, Malcolm Harbour and Catherine Trautmann, and supported by  industry lobbyists like AT&T? Or are they the principles of the open Internet, similar to those which the FCC has established in the United States? (See link below to FCC Chairman's recent  speech). 


Without Amendment 138, the Telecoms Package will:


Allow graduated response/3-strikes measures. I have had this confirmed to me by European Commission staff. The relevant Articles are: Universal Services directive Article 33.3, working in combination with Article 20.1 (b), Article 21.3 and 21.4.



Allow restrictions on Internet services and applications. This has been confirmed to me by lawyers that I have asked.  One law professor said to me recently : " it only means you have to tell the users if you are going to restrict"   Well surely, if they are obligated to tell users that they are restricting services, that means the law acknowledges that they may restrict. The same law professor went on "they are private companies, they may run their networks as they wish" which really only confirms that the law is allowing the operators to  restrict as they wish.


In other words, which ever way you argue it, the text means the same. It will allow broadband providers to restrict access to Internet services and applications, in the way that Deutsche Telekom is now doing for Skype. And as of 17th October, Deutsche Telekom   will be implementing a wide-scale Internet censorship.  BT is already said to be throttling peer-to-peer users.

The relevant Articles are: Harbour report -  Universal Services and Users Rights directive,  Article 1.3,  Article 20.1 (b), Article 21.3; Trautmann report -  Access directive Article 9.1;  Authorisation directive, Annexe 1, point 19; Framework directive - the "compromise" proposal for Article 1 which was rejected by the European Parliament, but which the Council will try to push again in Conciliation. (See below for link to the Directives in all languages).


The Telecoms Package also:

Will allow dominant suppliers like Deutsche Telekom to dictate to the competition

This is  a new factor which has emerged from recent analysis. In the Access directive, it provides for interconnecting networks to disclose ‘conditions limiting access to and or use of services and applications'. This would appear to give carte blanche to dominant operators such as Deutsche Telekom, to dictate to their smaller rivals which services they will or will not permit to transit through their networks. This outcome should be questioned by MEPs, and  the directive corrected to prevent such an outcome. (Trautmann report, Access directive Article 9.1).


Contains inherent contradictions in respect  of policy goals

The above  further represents an internal contradiction in the Trautman report, going against the well-established policy goal of inter-operability and end-to-end interconnection (which is Europe's implementation of the end-to-end principle, and essential for public communications network). This means, among other things,  it is bad law-making.


More information: 

 Read the full speech of FCC Chairman Julius Genachowski on 21 September : Preserving a Free and Open Internet: A Platform for Innovation, Opportunity, and Prosperity


 Letter to MEPs from WeRebuild

La Quadrature du Net has created a dossier on net neutrality and Europe's competitiveness


The text of the Parliament' Second Reading is available in all EU languages at the following URLs:

Framework, authorisation and access directives (Trautmann report )

Universal services and users rights directive (Harbour report)


Green Group/Pirate Party press release calling on the Council to explain why it opposes Amendment 138.

PRESS RELEASE - Brussels, 28 September 2009
Telecoms package

Negotiations on the telecoms package must be open-minded

The European Parliament delegation to the final stage of the legislative process (1) on the proposed 'telecoms package' will meet for the first time tonight. Speaking ahead of the meeting, Christian Engström (Pirate party, Sweden) and Philippe Lamberts (Ecolo, Belgium), Greens/EFA members of the European Parliament delegation, said:

"It is almost five months since the European Parliament vote on the telecoms package but the Parliament has yet to receive an explanation for Council's rejection of its position. With the legislation soon to enter its 'third reading' or conciliation phase, it is crucial that the Council and the Swedish Presidency send a reasoned explanation of their demands to the Parliament without delay. The absence of any explanation clearly hampers attempts to reach a compromise.

"It seems that the Council wants to limit the negotiations to a review of the contentious question of whether or not it is possible to block or limit access to the internet for citizens. The European Parliament vote made clear that internet access should not be blocked without a 'prior ruling' by the judicial authorities (2). Now, the only aim of the Council seems to be to reverse the parliament's vote on this issue.

Clearly, such a blinkered approach would be inimical to efforts to reach a workable compromise. The Greens/EFA group is calling for broader and more open-minded negotiations, which aim for legislation that protects citizens' rights and guarantees that the internet stays free and open."



This article is licensed under a Creative Commons Attribution Non-commercial-Share Alike 2.5 UK:England and Wales License. It may be used for non-commercial purposes only, and the author's name should be attributed. The correct attribution for this article is: Monica Horten (2009) Should MEPs open up the Package?, 27 September  2009. 







The Copyright Enforcement Enigma tells the story of the 2009 Telecoms Package and how the copyright industries tried to hijack it.

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