European ministers of justice continued their discussions on Thursday 11 October in Luxembourg on legislative proposals on cross-border access to electronic evidence (see EUROPE 12003), with a view to adopting a general approach to the text in December.
The subject of the day was 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). The discussion revealed a deep division between the member states.
The proposed regulation currently provides that the judicial authority of a member state may directly issue an order for the production of electronic evidence to a service provider or its legal representative in another member state (see EUROPE 12003), without involving its judicial authorities.
The complexity of this issue did not facilitate the discussion, as it was a question of whether or not a notification procedure was needed, whether it should be accompanied by a power of objection, but also which member state was then best placed to do so and finally what types of data should be involved.
To structure the debate, the Austrian Presidency of the Council of the EU suggested, as a compromise, that the notification should only be provided for information to the judicial authorities.
Several countries have been open to it, although they prefer the Commission's initial proposal, including Romania, Bulgaria, Italy and Estonia.
Then there are those for whom such a procedure would "reintroduce the principle of territoriality" that the proposal was intended to eliminate. This is particularly the case in Spain, Portugal and France.
For the Belgian minister, Koen Geens, succumbing to the temptation to add up the controls would be a mistake and he called for caution.
If the Council were to move towards systematic notification, however, it should be subject to clear limitations: for example, it should only concern so-called 'content data'. Nor should the involvement of another member state suspend the enforcement of the injunction by the service provider and the absence of a reaction within a specified period of time should be interpreted as approval.
Among those who defend with interest the introduction of a notification procedure that should allow the judicial authorities to oppose the injunction: Germany, Poland or Sweden.
In particular, the Austrian compromise did not convince Finland and the Czech Republic at all. It is above all a "problem of national sovereignty", both countries argued. Greece also has serious doubts about the role currently given to service providers, who then become the "guardians of fundamental rights".
In an attempt to convince them, the Commission has laid down all its cards. European Commissioner Věra Jourová considered that such a procedure would compromise the added value and speed of the instrument.
This is for several reasons. First of all, it would make the procedure more cumbersome and would mean providing more information to other member states on the ongoing investigation at a preliminary stage. Member states would also be required to check each of the notifications received, she explained.
"Just imagine Ireland for this, you will have to hire an army of new people to check all the notifications because of Google and Facebook being based on your territory", she took as an example.
In its view, if a notification procedure were to be introduced, it should make it possible to increase transparency and mutual trust between member states, but without jeopardising the effectiveness of the instrument.
It should be noted that the Commission and the Austrian Presidency of the Council, supported by several member states, also agreed that, at this stage, the interception of real-time data should be excluded from the scope of the proposal in order not to delay the process of adopting the texts.
Council impatient about American CLOUD Act
During the meeting, the Austrian minister, Josef Moser, asked the Commission about the state of play of the 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).
In June (see EUROPE 12033), the ministers had asked the Commission to urgently submit to the Council a recommendation for a mandate to open negotiations – which it has still not done to date.
To justify this, Jourová argued that the Commission needed "more clarity on the possible final version" of the texts on electronic evidence to develop the recommendation. She said it would be presented "as soon as possible" – in the "next few months", she said at a press conference – and explained that "preliminary discussions" had already taken place with the United States, which will continue in November.
But the Council's legal department has raised its voice. It has pointed to an "unhealthy situation in terms of legal security", recalling that conversations are currently taking place without a legal framework, since the Council has not given the Commission a mandate to start negotiations.
The Legal Service is also of the opinion that there is no obligation for the negotiating mandate to go into detail and that it is therefore not necessary to wait for substantial progress in the negotiations. In doing so, it threatened Article 241 of the Treaty, which allows the Council, by a simple majority, to ask the Commission to submit proposals to it if this recommendation does not come quickly.
The United Kingdom, which has already begun negotiations with the Americans on this issue, has offered to share its experience with other countries. (Original version in French by Marion Fontana)