The European ministers of justice, meeting in Luxembourg on Thursday 11 October, are expected to finally agree on the insolvency directive and will also continue their discussions on the proposals on electronic evidence.
Insolvency Directive. The EU Council is expected to adopt a general approach on the directive establishing a single legal framework to deal with business insolvency (see EUROPE 11673). No difficulties are expected, according to several sources.
As a reminder, member states had already agreed last June (see EUROPE 12033) on a 'partial general approach' and, at the end of September, member states' ambassadors (Coreper) endorsed the compromise text (see EUROPE 12104) of the Austrian Presidency of the Council on the proposed directive as a whole.
Electronic evidence. The ministers will then hold a public discussion on legislative proposals on cross-border access to electronic evidence (see EUROPE 12003).
The debate will focus this time on the introduction of a notification procedure to the judicial authorities of the member state of enforcement or the member state of the person concerned for European Evidence Production Orders (see EUROPE 12107).
Some countries, such as Germany, the Czech Republic, Poland and Finland, consider that the judicial authorities should be able to assess the injunction and oppose it, particularly in cases of incompatibility with fundamental rights. Belgium would be more cautious, but would nevertheless be open to notification to the member state where the concerned individual is located, which it considers to be the best placed.
For a majority, in particular France, Italy and Portugal, this would mean abandoning the innovative and effective nature of this mechanism and turning their backs on the principle of mutual trust.
Several sources have thus considered that a compromise could be a notification on a "purely informative" basis to the judicial authorities.
The Commission should also take stock of the results of discussions with experts on real-time data interception. The Austrian Presidency should, for its part, indicate its intention not to include it at this stage, in order not to delay the process of adopting the texts, according to a European source.
Some ministers could also ask the Commission to inform them about the state of play of the ongoing negotiations with the Americans on the conclusion of an executive agreement between the EU and the United States under the US CLOUD Act (see EUROPE 11988).
Mutual recognition. Ministers will also discuss mutual recognition and trust in criminal matters in the EU.
What would worry some countries, particularly France, is the tendency to attach controls to this system in the name of fundamental rights, several sources explained. This is a real doctrine issue for the future of the Europe of Justice, a diplomatic source said.
The trigger would have been, inter alia, the negotiations in the Council on the mechanism for the mutual recognition of orders freezing and confiscating assets of criminal origin (see EUROPE 11694). Germany had wanted to impose a control mechanism in the member state of enforcement to verify compatibility with respect for fundamental rights.
Officially, however, this new discussion is a "follow-up” to the informal meeting of ministers in Innsbruck last July. This is indicated by the Austrian Presidency in a note dated 25 September – of which EUROPE has had a copy – in which it questions ministers on best practices in their country.
However, according to another European source, little can be expected from this discussion. It would be complicated to reaffirm mutual trust between member states when the independence of the judiciary is compromised in Poland, Hungary or Romania, she explained.
In any case, the Presidency intends to submit Council conclusions on this subject to the ministers in December for approval, according to the note.
Fundamental rights. Ministers will also have an exchange of views with the director of the EU Fundamental Rights Agency and adopt conclusions on the application of the EU Charter of Fundamental Rights in 2017.
While these conclusions are usually adopted without difficulty, Poland and Hungary would have liked to reduce references to discrimination on the grounds of sexual orientation and would have made specific claims regarding references to discrimination on the grounds of religion, according to several sources.
Finally, the Commission will present to the ministers of justice its arsenal of measures unveiled in mid-September to ensure an electoral environment free of external manipulation (see EUROPE 12094), but it is the General Affairs Council that should be responsible. It will also take stock once again of the establishment of the European Public Prosecutor's Office. (Original version in French by Marion Fontana)