Member States are struggling to establish a clear direction for the introduction of a notification procedure to the judicial authorities of the enforcing Member State or the Member State of the person concerned for European Evidence Orders (see EUROPE 12107).
As a reminder, the discussion at ministerial level on this subject on 11 October revealed a deep division (see EUROPE 12115). This is a major change since the proposed Regulation currently states that the judicial authority of one Member State may directly issue a production order for electronic evidence to a service provider located in another Member State (see EUROPE 12003), without involving the judicial authorities of that country.
In a note dated 17 October, the Austrian Presidency of the Council of the EU weighs the pros and cons of each option.
It explains that notification to the enforcing Member State would create greater legal certainty for service providers and would address concerns raised in relation to "national sovereignty". On the other hand, it points out that, in many cases, the enforcing Member State will have only a very limited link with the case.
This is where notification to the Member State in which the person whose data are requested resides provides added value, since that country would be in the best position to protect the fundamental rights of that person or to apply his or hers immunities and privileges. From the point of view of efficiency, notification would not always be necessary because, in many cases, the person will reside in the Member State issuing the injunction.
However, in other circumstances, this solution could instead complicate matters by adding a third Member State to the procedure and cause difficulties when the person's place of residence is unknown.
Adding on to this headache is also the question of whether this notification procedure should be purely informative, as suggested by the Austrian Presidency, or whether it could give Member States a right to oppose the injunction, as requested by Germany, Poland, Sweden, Finland or the Czech Republic.
In this document, the Presidency seems to be engaged in a final exercise of persuasion. The regulation already offers strong protection for the person whose data is requested. And a consensus seems to be emerging on a balanced approach taking into account the different areas of sensitivity of the data categories, with some ministers suggesting that the notification procedure should only be used for so-called 'content' data.
According to a European source, the working group discussions held on the basis of this document on 22 and 23 October did not provide a clear direction, either on the question of which Member State should be notified or on the effect of such notification.
Yet delegations would have discussed further the option of notifying the Member State where the person whose information is requested resides. But, aware of the many practical problems that this option may pose, the Austrian Presidency should invite delegations to consider the second option in future discussions, according to our information. (Original version in French by Marion Fontana)