European Justice Ministers meeting at the Council on Friday 9 March will attempt to conclude a political agreement of principle (general approach) on the directive for tackling fraud and counterfeit non-cash means of payment (see EUROPE 11865). They will also continue their work on recasting the Brussels II (a) regulation and will discuss electronic evidence and the setting up of the European Prosecutor's office.
On Wednesday 7 March, the Committee of Permanent Representatives to the EU (Coreper) reached an agreement on the Bulgarian Presidency's compromise text on non-cash means of payment fraud and decided to submit the text to the European ministers on Friday.
According to several different sources, Germany had referred to “constitutional difficulties” and said that the criterion of intention (see EUROPE 11962) for the list of offences included in article 4 (material means of payment) and article 4 (a) (non-material) would, in certain aspects, be contrary to the caselaw of the German Constitutional Court.
Although only a qualified majority is required on this dossier, Germany could, nevertheless, request, under the terms of paragraph 3 of article 82 in the Treaty on the Functioning of the European Union, the suspension of the ordinary legislative procedure and send the text back to the European Council, on the grounds that this text encroaches on the fundamental aspects of its criminal legal system.
According to one European source, the Bulgarian Presidency of the Council remains confident, nevertheless, about being able to reach a general approach (see EUROPE 11974).
Brussels II a Regulation. The ministers will also resume their work on recasting the Brussels II (a) regulation on decisions on matrimonial law, parental responsibility and international child abduction (see EUROPE 11584).
After a political debate in June 2017 on child hearings and another in December on the scrapping of the exequatur procedure (see EUROPE 11923), they will spend an hour on Friday examining the allocation of human and financial resources to the central authorities, designated by the member states to help them in the application of the regulation (see EUROPE 11971).
Electronic evidence. They will then proceed to an exchange of views behind closed doors, attended by Commissioner Vĕra Jourová (Justice) and Commissioner Julian King (Security), on improving cross-border access to electronic evidence, whilst awaiting the European Commission's presentation of the legislative proposal.
The proposal is eagerly awaited because it is expected to insist that electronic service providers designate a legal representative to be the direct and single interlocutor with the magistrates involved in their investigations. The new system would therefore replace the use of international rogatory committees, which are often very long, with a judicial requisition for this representative, who would then be obliged to provide the evidence requested.
The objective of this debate would therefore be to encourage the Commission to speed up its work. The proposal was initially planned for 24 January but has now been scheduled for 17 April (see EUROPE 11974). According to one diplomatic source, however, it could still be further delayed due to the legal difficulties and differences of approach at the Commission. Our source mentioned above explained that if the Commission does not present this proposal in the next few weeks, it could be pushed back to the next mandate and not be adopted until 2020.
The new draft US law, the ‘CLOUD Act’, compelling US service providers to comply with US data disclosure requirements, irrespective of the place of data storage, is expected to be referred to in this regard (see EUROPE 11973).
European Prosecutor’s Office. Commissioner Jourová will also provide an explanation to ministers about the progress achieved in the work involved in setting up the European Prosecutor’s Office by 2020. 21 member states are now involved, with the recent addition of the Netherlands (see EUROPE 11948). Ministers will also discuss the future cooperation between the European Prosecutor's Office and other agencies such as Eurojust, Europol and the European Anti-Fraud Office (see EUROPE 11971).
Finally, at dinnertime, the ministers will hold discussions on the question of radicalisation in prisons - a question that still remains sensitive and upon which the member states have adopted different approaches. (Original version in French by Marion Fontana)