On Monday 4 June, the European justice ministers held their first-ever exchange of views on the proposals concerning electronic evidence, presented by the European Commission in April (see EUROPE 12003).
It emerges from the discussions that several member states wish to look into the possibility of extending the scope of application of the regulation (see EUROPE 12032), despite concerns that this will delay the adoption of the proposals.
As regards the interception of data in real time, most member states acknowledged that this was a “sensitive and intrusive” measure. Nonetheless, they stressed that the possibility was set out in most national delegations, in the directive on European investigation orders and the US 'CLOUD Act'.
On direct access to digital evidence, the member states stressed that this was a powerful tool when dealing with non-cooperative service-providers, allowing the authorities of the member states to access the available data remotely following raids and the confiscation of devices or by means of legally obtained powers to access an account.
However, they called for caution, in view of the differing national legal frameworks and a number of legal questions, including the appropriate legal basis.
“I understand that it is attractive, but upon reflection, there are some issues”, said the Irish minister, referring to the risk of unfortunate and unnecessary delays that this could cause in the adoption of the proposal. He considers that if these matters must be dealt with, it should be separate from the current proposals so as to avoid hindering any progress – an idea that was supported by Estonia, Slovakia and Hungary.
The aim might not be to finalise a text at any price, said François Roux, the permanent representative of Belgium to the EU. He believes the proposals should resolve the operational problems and that the quality of the result should take precedence.
The Dutch Minister, Ferdinand Grapperhaus, called for these questions to be put on ice for the time being in order to focus on the proposals on the table at political level. France, in the opposite corner, considers that if the EU wishes to adopt ambitious legislation in this area, it should include both components in the proposals.
The question will be referred to the 'Justice/Home Affairs' Council of October, in the hope that the member states will have moved closer together by then.
Unanimous support for a coordinated approach to 'CLOUD Act'
The ministers also confirmed their hopes of rapidly opening negotiations with the United States on concluding an executive agreement between the EU and the US in the framework of the American 'CLOUD Act' (see EUROPE 11988) and asked the Commission to submit a recommendation to the Council as a matter of urgency for a negotiating mandate to this end. The Council will put together a negotiating mandate before the summer break, Ms Tsacheva told a press conference.
Hungary considers that if an agreement between the US and the EU should be concluded, the signature of bilateral agreements of the member states should at least be coordinated, for instance by introducing a 'template agreement' for the EU member states. (Original version in French by Marion Fontana)