On Thursday 11 October, during the Justice Council in Luxembourg, European justice ministers will be invited to express their views on the introduction of a procedure for notification to the legal authorities in regard to European production orders for access to electronic evidence (e-evidence). This was revealed in a note from the Austrian presidency of the Council of the EU, sent to member states on 26 September.
The proposal for a regulation makes it easier for the legal authority of one member state to directly send an order to a service provider or his/her legal representative in another member state to produce or to preserve e-evidence within the framework of a criminal inquiry (see EUROPE 12003).
As things stand, the text does not provide for involvement of the legal authority of the member state in which the service provider or his legal representative is located. This would only happen for acknowledging or implementing the decision if this were not respected by the service provider.
The Austrian paper underlines that, while many member states support this mechanism due to its speed and efficiency, others have expressed concern and suggested introducing the obligation to give another member state the possibility to assess the injunction and oppose it, via notification procedure. Last week, a study by the European Parliament also recommended such a system (see EUROPE 12102).
Two different solutions for such a procedure were discussed by the experts, the presidency explains. These are: - notification to the member state of the service provider or his legal representatives, or notification to the member state of the person whose data are sought.
“The debates showed support, but also misgivings, regarding both the solution set out in the draft regulation and the different proposals for notification”, it concludes.
In order to reach the objective that it has set itself – namely an agreement by December (see EUROPE 12059) – the presidency is sounding out member states to know whether they want to introduce such a system, and is asking them to what member state the injunction should be notified.
By way of compromise, however, it is suggesting at this stage that notification should only be provided to the legal authorities for information. (Original version in French by Marion Fontana)