Member States' ambassadors to the EU (Coreper) will seek to reach political agreement in principle on Wednesday 28 November on the Regulation introducing European orders for the production and preservation of electronic evidence that can be directly addressed to a service provider in another Member State (see EUROPE 12003).
The compromise text of the Austrian Presidency of the Council of the EU was the subject of a silent procedure, open until Friday 23 November, but which has been reportedly broken by two Member States opposing the text, a European source told us on Monday 26 November.
Not all the reservations have yet been withdrawn, particularly on the thorny issue of the introduction of a notification procedure (see EUROPE 12115), which is the main change compared to the European Commission's initial text.
The compromise text, dated 23 November, of which EUROPE has received a copy, finally incorporates the proposal of the Austrian Presidency of the Council to set up 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.
This would only be informative, systematic for cross-border cases and only valid for so-called ‘content’ data (text, voice, videos). In addition, the text specifies that its activation would not have a suspensive effect on the obligations of the service provider (see EUROPE 12139).
But the Czech Republic, Finland, Germany, Greece, Hungary, Latvia and the Netherlands have entered a reservation on this notification procedure, advocating a more efficient procedure that would also include so-called transactional data and a fundamental rights clause and providing grounds for refusal for the notified authority.
Belgium, Bulgaria, Estonia, Spain, France, Ireland, Italy and Portugal have also expressed a reservation on this procedure and consider that the Commission's proposal without notification would be preferable.
If there were nevertheless to be a notification procedure, Belgium, Poland and Luxembourg would then prefer a notification to the Member State in which the person whose data are requested resides.
The text also amends the definition of service providers and introduces, in a new article, a ‘principle of speciality’, stating that electronic evidence may not be used for procedures other than those for which it was obtained in accordance with this Regulation, except in certain exceptional cases, in particular to prevent an immediate and serious danger to the public security of the issuing State.
In terms of sanctions imposed on the service provider for non-compliance with its obligations, the text provides that they must be determined on a case-by-case basis and must also take into account the nature, gravity and duration of the infringement. It also specifies that financial penalties may be imposed up to 2% of the service provider's worldwide annual turnover.
The text leaves unchanged the time limits for the transmission of data by the service provider to the issuing authority, namely ten days after receipt of the injunction and six hours in an emergency. On the other hand, it extends the application of the Regulation to 24 months after its entry into force, compared to six months proposed by the Commission.
If this fails on Wednesday, the text should be submitted again to Coreper next week in view of the Justice Council on 7 December. (Original version in French by Marion Fontana)