Work is continuing at the Council on the Commission proposals regarding cross-border access to electronic evidence (see EUROPE 12003), particularly with regard to the extremely difficult question of the re-examination procedure in cases involving service providers established in third countries that are faced with a contradictory requirements (see EUROPE 12042).
In a note from the Austrian Presidency of the Council of the EU dated 11 September, of which EUROPE has obtained a copy, it is stated that “Given the number of comments received questioning the efficiency of the proceeding provided (...) the Presidency considers it necessary to separate this issue from the examination of the rest of the proposal and have an in-depth debate”.
It should be recalled that the procedure set out in article 15 can be activated by the addressee if respect for the European order for producing evidence leads to the breach of a law in a third country prohibiting the disclosure of data, whilst claiming the need to protect the fundamental rights of the individuals concerned or the fundamental interests of the third countries in national security matters (or other reasons in the procedure set out in article 16).
In this situation, the issuing authority would therefore have to re-examine its own order and if it decided to maintain it, the appropriate jurisdiction of its member state would therefore be in charge of deciding whether a conflict existed in the case in question.
To further develop the reflection, the Presidency has put two options on the table and is calling on the member states to say which they prefer or present alternatives.
Option 1. The first option would consist in maintaining the separation between article 16, unchanged in relation to the Commission text, and article 15, which would undergo a number of amendments.
As part of the main changes put forward, the Presidency attempted to provide assurances that the procedure would not hinder the investigation of the issuing member state when, in the event of legal conflicts observed, the competent court of the member state would transmit information on the case in point to the central authority of the third country.
This option also seeks to reduce the influence of the third country's administrative authority on the decision made by the court in the issuing member state, in order to ensure better “distribution of competencies”, explained the Presidency.
In particular, it removes some of the response deadline extensions for the third country authority but, nonetheless, stipulates that the competent jurisdiction of the member state “duly takes into account the opinions expressed by the central authority of the third country” when it decides to maintain or lift an order.
Option 2. In the second option, the Presidency proposes to merge articles 15 and 16 so that a single article governs all the procedures applicable to legal conflicts. To this end, it is suggesting two “sub-options”.
The first only differs from Option 1 insofar as it removes the obligation for the competent jurisdiction to listen to the opinion of the third country when it has decided whether or not to maintain the order. It also intends to introduce a maximum 10 day deadline after the date of receiving the order from the provider, to submit an objection.
The second sub- option contains these amendments and also strengthens certain factors, particularly the protection of fundamental rights and national security, when the court responsible decides whether there is a legal conflict or not. It also introduces the possibility for the appropriate court of the member state concerned to contact the appropriate authority in the third country if supplementary information on the national law applicable, its caselaw or interpretation, are deemed necessary. (Original version in French by Marion Fontana)