The system of direct cooperation to obtain electronic evidence, such as proposed by the European Commission (see EUROPE 12003), continues to raise concern. A study commissioned by the European Parliament's civil liberties committee and published on Friday 21 September warns against the system's harmful effects for member states' territorial sovereignty.
Like the European Parliament's rapporteur Birgit Sippel (S&D, Germany) (see EUROPE 12090) and other stakeholders (see EUROPE 12066, 12004), the study expresses concern at the distancing of the new European injunctions on the production and preservation of electronic evidence, which will create a legally binding obligation on the territory of another member state, compared with the current framework of the mutual recognition of judicial decisions.
According to the study, this risks affecting the territorial sovereignty of the member state in which the service provider will execute the new injunctions and thus will override the responsibilities of member states for effective protection of fundamental rights on their territory.
In this regard, the authors of the study consider that it is essential to reinforce the role of the member state of execution with a notification mechanism that would permit its competent authority to take a decision on the execution of the injunction.
Such a "unilateral approach" could also have a negative impact on the functioning of the international framework of cooperation with third countries, give place to conflicts of competence, to contradictory obligations and thus, in the end, create legal insecurity for service providers but also for users, the study states.
It also notes that in return for the establishment of this unilateral system of obligatory cooperation with foreign service providers, the EU and its member states will have to accept similar models applied by third countries.
The authors also recommend the European Parliament re-examine if and to what extent the European Investigation Order (implementation of which is still very recent) could not constitute an alternative to these new instruments, especially for transaction data and data content.
The study indeed notes that the European Investigation Order requires an intervention of the member state where the decision must be executed and has facilitated cross-border cooperation considerably by reducing obstacles to cooperation, while conserving appropriate protection. (Original version in French by Marion Fontana)