There is no need for a pan-European net neutrality law because national laws already ensure citizens cannot be disconnected from the web without a court order, the European Commission has said.
The Commission was reacting to the French Constitutional Court's ruling that Hadopi — the so-called 'three-strikes' anti-piracy law that would force ISPs to cut off persistent file-sharers of copyrighted material — is unenforcable.
The court based its decision, issued on Wednesday, on the right to freedom of expression and the presumption of innocence, arguing that such disconnections could not be made without a court order.
Reacting on Thursday, the Commission said "the right balance between the need to protect intellectual-property rights and important fundamental rights such as freedom of expression and freedom of information can be found already in each of the national legal systems of the Member States".
It added: "The Commission therefore welcomes the clarification brought by the French Constitutional Court."
The potential disconnection of persistent file-sharers is the subject of heavy lobbying in Europe, with much of the content industry calling for laws to crack down on people who distribute its content online without permission. The opposing lobby argues that content companies should not be allowed to violate citizens' right to internet access.
An amendment that specifically aims to stop such disconnections is currently holding up a massive collection of reforms to European telecommunications laws — the so-called Telecoms Package — that would provide the first major overhaul of those laws since 2002.
Amendment 138/46 was added at the last minute to the package, which was subsequently voted through in its entirety by the European Parliament at the start of May. The rest of the package had previously been agreed between parliamentarians and the Council of Telecoms Ministers — the body that needs to give its final approval if the package is to become law — but the Council remains opposed to the amendment.
The Council met on Thursday to discuss what to do about the Telecoms Package, but refrained from making a final decision because it had not been officially notified of the Parliament's May vote. The Parliament has until the end of this month to issue this formal notification. The Council could then decide to accept the whole package, reject the whole package, or reject the part of the package to which the amendment has been attached.
Known as the Framework Directive, this part includes major reform to the management of radio spectrum that is seen as crucial to rolling out new mobile-broadband services. It also ensures the independence of national telecoms regulators from their governments, and would establish a pan-European telecoms regulator that could overrule national regulators.
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Any part of the package that gets rejected would then have to go to a conciliation process between parliamentarians and the Council. This process would only begin in October or November.
The Commission said on Thursday that Amendment 138/46 "should not be the stumbling block for completing the final negotiations successfully very soon", and argued that the clause "restates at EU level what is self-evident in all national legal systems".
Diplomatic sources within the EU do not seem confident that the Telecoms Package will survive the furore over Amendment 138. One source told ZDNet UK on Friday: "The chances that the Telecoms Package will ever be agreed are two percent." The source quoted one unnamed telecoms minister as saying at Thursday's Council meeting that "Parliament must be punished" for voting through the amendment.
"You will not get an agreement with this attitude," the diplomatic source said.
Another source said: "It may be possible to define situations where the user would have the right to keep internet access or not, but that is not the purpose of this piece of legislation. This is an important issue — we need to define the rights and responsibilities of internet users, but not here and now."
ZDNet UK understands that, should the Framework Directive component of the Telecoms Package be passed, that section of law would call on the Commission to launch a consultation into the rights of internet users.
