The Council of the EU has begun its detailed examination of the two legislative proposals aiming to improve access to electronic evidence held by communication service providers (see EUROPE 12003). In a number of documents seen by this newsletter, the Bulgarian Presidency of the Council questions the member states about several key measures and even proposes some initial areas of guidance.
Cross border access to evidence. In a memo dated 12 June, the presidency takes particular interest in the procedure for issuing European injunctions on the production and conservation of evidence foreseen in the draft regulation.
It wants to know how the delegations interpret cases where service suppliers cannot provide data requested due to force majeure or it being de facto impossible, for example, if the person whose information is targeted is not a customer of that service or if, under the duty of confidentiality, the data was lawfully erased before receipt of the request.
More generally, it invites the member states to reflect on a balance between obligations on service suppliers under the regulation and the reasons they can use against a decision in order to preserve the effectiveness of the procedure and avoid unnecessary delays.
The document looks at the procedure for re-examening injunctions in cases of contradictory duties based on fundamental rights, or a third country’s fundamental interests in relation to the United States’ CLOUD Act, with regard to which European ministers unanimously supported a coordinated EU approach on 4 June (see EUROPE 12033).
The presidency asks about the effectiveness of this measure and envisages incorporating it into the text of a high standard in order to encourage a similar level of protection to ensure the protection of an individual’s fundamental rights or the fundamental interests of a third country relating to security or national defence.
Designation of legal representatives. In a second memo, dated 6 June, the Bulgarian Presidency looks at the directive requiring service suppliers to designate a legal representative in the EU responsible for receiving and respecting EU injunctions.
It wants feedback from the member states about the level of harmonisation of the type and level of penalties laid down in Article 5 in the event the directive is violated.
The Presidency proposes two options at this stage: - setting a minimum common level of penalties in the framework of the directive; - or leaving it to the member states to settle this issue in their national measures for transposing the directive, as proposed by the Commission.
The first option was raised by a number of countries that feel that it would make it possible to restrict forum shopping of service suppliers to find the one with the weakest penalties.
Another area of reflection is speeding up the coordination mechanism laid down in Article 6, which foresees that the member states must designate a central authority for ensuring coherent application of the directive. Germany is reported to have suggested setting up a special common procedure for implementation measures.
As for political issues, such as extension of the regulation’s scope of application to the interception of data in real time and direct access to digital evidence (see EUROPE 12032), the formal discussions at ministerial level will resume at the Justice Council in October. (Original version in French by Marion Fontana)