The European Commission Infraction Proceedings

ECJThe European Commission  announced that they had referred the UK to the European Court of Justice 'for not fully implementing EU rules on the confidentiality of electronic communications such as e-mail or internet browsing' on 30 September 2010.

Very little of the UK Government's interaction with the European Commission has been published; it has been kept secret 'in the public interest'. There was some information disclosed in November 2009 by the House of Commons European Scrutiny Committee. Details of the case have not been published on the ECJ Curia system.

The Government had two attempts at addressing the concerns of the European Commission, and failed on both occasions. The first response was written by BERR (now BIS) in September 2008. The second response was lead by the Home Office, and submitted to the European Commission in May 2009.

Following changes changes to UK law removing any notion of 'implied consent' for interception, the European Commission dropped the infraction case in January 2012, claiming that

    "Following the Commissionís decision in September 2010 to refer the case to the Court of Justice (IP/10/1215), the UK amended its national legislation so as not to allow interception of users' electronic communications without their explicit consent, and established an additional sanction and supervisory mechanism to deal with breaches of confidentiality in electronic communications."

The assurance that the UK has amended is national legislation is worthless. The failure of corrupt telecom businesses to abide by the law, and the failure of corrupt politicians, civil servants, the police, and the CPS to enforce the law remains. For example; Vodafone, TalkTalk, and 3UK are presently illegally intercepting UK communications without consent from sender and recipient, and divulging the content to third parties.

See details of the European Commission's infraction process.

Summary of the Sequence of Events

September 2003

Stephen Timms was warned by Civil Servants to legislate for PECR/Directive 2002/58/EC, that failing to legislate for the European Privacy in Electronic Communications Regulations (PECR/Directive 2002/58/EC) might result in an ECJ action against the UK Government.. The "expected wider benefit is the avoidance of action in the ECJ, and the parallel avoidance of damages awarded against the Government in the UK courts for non-implementation of the Directive by users and operators granted rights under it."


April 2008

The Register exposes the trials of Phorm systems by BT in 2006. BT's Emma Sanderson appears on BBC Breakfast attempting to explain. But a few days later details emerge of a second much bigger trial in 2007.

Complaints to the Police, Home Office, Ofcom, and Information Commissioner are ignored.

The European Commission issues a press release expressing concerns about the Phorm system. "The Commission has opened an infringement proceeding against the United Kingdom after a series of complaints by UK internet users".


July 2008

In July 2008, the EC sent the Government a Pre-Warning Letter

There are some items of correspondence in mid July between the Cabinet Office and the EC that were disclosed in response to FoI.


August 2008

BERR were responsible for the first response to the EC, which was compiled in August/early September 2008 by BERR and the Home Office. That document was reviewed, edited, and approved by Shriti Vadera.

There was a meeting at 1 Victoria Street on 5 August 2008 at which a plan was made for the response to the EC. According to the plan, the response to the EC was submitted to Shriti Vadera for approval on 1 September 2008.


September 2008

BERR replied to the EC on 15 September 2008 .


October 2008

By 10 October 2008, the EC had rejected the response provided by the UK Government.

On 15 October a request was made for BERR to disclose this response, which they comprehensively refused.

In mid October 2008, Shriti Vadera was moved to a new role.

On 20 October 2008 we know David Hendon met with BT to 'discuss the line we took'.


January 2009

On 26 January 2009 Home Office and BERR (and possibly others) met to consider the EC action against the UK Government.


February 2009

In February 2009, the EC threatened legal action. The content of that letter was not  disclosed by David Hendon at BERR.


April 2009

The EC revealed plans to sue the UK Government on 14 April 2009.

The deadline given for the Government to respond was two months.

The Home Office and BERR, along with other Government departments, met again on 21 April 2009 and 28 April 2009.

The Cabinet Office, BERR, and the Home Office met on the 28 April 2009 to decide who would take the lead responding to the EC Infraction proceedings. The Home Office took responsibility for RIPA related matters, questions related to Phorm would be handled by other departments. Cabinet Office have refused to disclose the details of that meeting on cost grounds.

The ICO claim they were not consulted about that submission (even though it related to matters of data protection and communication privacy that they were responsible for enforcing).


May 2009

On 8 May 2009, the Home Office took the lead responding to the EC Infraction proceedings.


June 2009

The Home Office were asked to disclose the second response on 13 June, but again refused.


October 2009

On 29 October the EC announced its intention to issue a reasoned opinon against the UK Government. The Home Office had two months to respond.


December 2009

The Home Office failed to comply with the 31 December deadline and may soon face a European Court of Justice case.


January 2010

The Home Office finally responded on 18 January 2010.


September 2010

The EC finally referred the UK to the European Court of Justice; Digital Agenda: Commission refers UK to Court over privacy and personal data protection


May 2011

The EC quietly suspends the case against the UK on 19 May 2011, following changes to UK law removing any notion of 'implied consent' for interception, and changes to the role of the Interception of Communications Commissioner.


January 2012

The EC dropped the infraction case against the UK on 26 January 2012.

And so the corrupt businessmen, politicians, police officers, and CPS lawyers responsible for the BT/Phorm crimes have escaped unpunished.


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