In a memo published on Wednesday 18 July, the Dutch standing committee of experts in international immigration law, refugees and criminal law (the ‘Meijers Committee’) queries the legal basis selected for the draft regulation establishing European injunctions on production and conservation, which make is possible to obtain electronic evidence directly from service suppliers (see EUROPE 12003).
This is not a new concern. It was raised I the past by the association, European Digital Rights (EDRi), just after the proposals were presented (see EUROPE 12004), and again by the ‘Article 29’ working group in an opinion in November 2017.
The memo starts by recognising that the approach proposed by the Commission is fundamentally different from existing mutual recognition instruments because it de facto strengthens the competent authorities’ operational scope beyond their national borders.
In its viewfinder: use of Article 82 of the TFEU on judicial cooperation in criminal cases. The committee notes: ‘This Article has until now never been used to adopt legislation enabling national authorities to directly address citizens or companies living/residing in other Member States.’.
The impact analysis also recognises this because it states that this is a new dimension of mutual recognition. The committee notes, however, that the same principle of mutual recognition is reserved for cooperation solely among judicial authorities.
The experts feel that this legal basis is insufficient to be able to adopt measures, for example, forcing the member states to foresee fines for violation of duties under the proposed regulation. They explain: ‘The potential harmonising effect of this provision on the substantive criminal laws of the Member States may require an additional legal basis.’
The Meijers Committee goes much further, challenging the choice of the legal instrument.
The experts say that the conservation and transmission of data by non-judicial bodies of another member state raises clear questions in terms of the principle of legality established in Article 49 of the EU's Charter of Fundamental Right. According to their interpretation, the exercise of said powers to intervene requires a legal basis in the national pea procedure.
The committee thus invites the co-legislator to reconsider the choice of legal instrument and to opt for a directive. (Original version in French by Marion Fontana)