Member States are still struggling to agree on 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 Production Orders (see EUROPE 12107). The Austrian Presidency of the EU Council then took the lead and proposed, as a compromise, an informative, systematic notification procedure for cross-border cases and only for so-called 'content' data.
As a reminder, the discussion at ministerial level in October on the addition of this procedure, which is not included in the Commission's initial text, revealed a deep division (see EUROPE 12115).
In a revised version of the text dated 8 November and a version still updated on 15 November, the Presidency finally proposes the introduction of a notification procedure for the authorities of the Member State where the injunction is enforced, i.e. the Member State where the service provider from whom the data are requested is located, and not the Member State where the person whose data are requested resides, as might have been envisaged (see EUROPE 12126).
However, this procedure would only concern so-called 'content' data (text, voice, video). The Presidency justifies this differentiated treatment compared to other types of data by the fact that they may reveal sensitive details about people's private lives.
Another condition: this procedure would only apply in cross-border cases, where the authority of the Member State issuing the injunction would have ‘reasonable grounds’ to believe that the person concerned does not reside in its territory.
The notified authority would then have the possibility to inform, as soon as possible, the authority of the issuing Member State of several national circumstances, such as the privileges and immunities granted by its national law or to assert certain fundamental national interests in the non-disclosure of data, such as national security.
The authority of the issuing Member State would then be required to take these circumstances into account in the same way as if they were provided for by its national law and could decide to withdraw or adapt the European Evidence Production Order accordingly.
The initiation of the notification procedure can under no circumstances suspend the service provider's obligations, the text states.
The solution was discussed in a working group on 13 and 14 November, and there is still no consensus on it. A European source said that there was no clear path to follow. Everyone reportedly stuck to their positions, with the majority of opponents of the notification procedure not wishing to make more concessions and the defenders of this procedure considering that the Austrian compromise was not sufficiently binding.
Definition of service providers. In another document, dated 15 November, the Austrian Presidency also proposes to amend the definition of digital service providers, in particular the definition of ‘information society services’, which some countries consider too vague.
The Commission's original proposal provided for the inclusion in the scope of information society services, for which data storage was a ‘decisive element’ of the service provided to the user.
To enhance legal clarity, the Presidency deletes the notion of the main element of the service provided and proposes that all information society services allowing its users to communicate, process or store data be included.
This new definition should be discussed in the working group on 21 November. (Original version in French by Marion Fontana)