On Wednesday 13 April the Dutch news agency ANP broke the news that the European Council of Justice and Home Affairs had definitely withdrawn the data retention proposal from their schedule and would wait for a proper 1st pillar proposal from the European Commission, following devastating legal advice from both the Commission as well as the internal legal service. Thanks to the civil rights organisation Statewatch the two documents (in French only) had been leaked to the public on 10 April 2005. Both texts suggest that the Council is wrong in assuming it can create mandatory data retention in the third pillar (criminal law and policing). The proposal will have such a major impact on the internal market and the existing e-privacy directive of 2002 that only the Commission, with full co-decision rights of the European Parliament, is allowed to propose legislation.

ANP also suggested the Commission' proposal wouldn't be ready before September 2005, thus seriously delaying the Council scheme of introducing a framework decision on data retention by the 1st of June 2005. EDRI could not get any confirmation of this news. The day before ANP brought the news, during an intensive debate with the legal affairs committee of the Dutch Lower House about the draft framework decision, Justice Minister Donner completely denied the importance of the two documents. The Council would just continue its work, and if the Commission would come up with a proposal it would be early enough for the Council to take a position on the legalities. A majority of MPs wanted much more proof of the necessity and especially effectivity of data retention, before they could agree with any further steps in the JHA Council. Donner said he would send another letter to the Lower House explaining his position on the necessary data and required powers for international collaboration. He also promised that the results of a new investigation into the need and necessity of data retention would become publicly available and discussed in Parliament before the Netherlands would agree to any JHA vote on the issue. Donner commissioned the report in February 2005 to the criminal law faculty of the Erasmus University of Rotterdam. According to the minister, the discussion was removed from the JHA schedule of 14 April "because there was still too much difference in opinion on the kind of data to be retained."

On 15 April the German e-zine Heise got a similar quote from a spokesperson of the Council about the irrelevance of the legal advices. The Working Party on Cooperation in Criminal Matters (high level officials) would just continue to work on the details of the framework this week. To underline their determination, on 15 April the Council published a new proposal made by Lithuania on the content of communication data to the working group. The Lithuanians suggest that the police definitely needs access to massive databases with all imaginable telecommunication protocols, as well as username, password, PIN and PUK codes.

Heise also quotes a furious Alexander Alvaro, the EP rapporteur on the proposal (in a purely consultative role). Alvaro was outraged at a speech by the Luxembourg Justice minister Luc Frieden, who told the European Parliament that it was unnecessary to debate the legal approach if all parties agreed on the same goal. Apparently, the Council still expects a hardcore data retention proposal from the Commission to appear early in June 2005.

EU: Data Retention proposal partly illegal, say Council and Commission lawyers (10.04.2005)
http://www.statewatch.org/news/2005/apr/02eu-data-retention.htm

Heise: Weiter Zoff um EU-Pläne zur Speicherung von TK-Verbindungsdaten (15.04.2005)
http://www.heise.de/newsticker/meldung/58625

Lithuanian proposal on the content of communication data (published 15.04.2005)
http://register.consilium.eu.int/pdf/en/05/st08/st08004.en05.pdf