On Friday 7 December, the European Ministers of Justice reached political agreement in principle on the Regulation introducing European orders for the production and storage of electronic evidence that can be directly addressed to a service provider in another Member State (see EUROPE 12003).
This agreement reached by qualified majority, against the will of eight Member States, is a great victory for the European Commission and for the Austrian Presidency of the Council of the EU, which had made it a priority.
Overall, the Council text (see EUROPE 12146) incorporates the main elements of the Commission's initial proposal, but introduces a notification procedure to the authorities of the executing Member State where the injunction is enforced, which would be solely informative, systematic for cross-border cases and valid only for so-called 'content' data (text, voice, video).
While the European Commission welcomed the achievement of a general approach, it nevertheless expressed some concerns about the text, in particular the deletion of the review procedure in the case of conflicting obligations based on fundamental rights or fundamental interests of a third country.
The Czech Republic, Finland, Germany, Greece, Hungary, Sweden, Latvia and the Netherlands indicated that they were unable to support the compromise proposal as it stands (see EUROPE 12154). These countries criticise it for not sufficiently protecting the fundamental rights of the people whose data are requested, but also for posing problems in terms of national sovereignty. Instead, they advocated an enhanced notification mechanism that would give the executing Member State the possibility to oppose the injunction.
Considering that the compromise was not ready for adoption, the Netherlands asked at the meeting of the future Romanian Presidency of the Council of the EU to put the subject back on the table at the next Justice Council, but was refused.
The eight countries do not intend to lower their weapons and have indicated that they will make their voices heard in the upcoming trilogue negotiations with the European Parliament. There is therefore a risk of unravelling the text, especially since Parliament does not yet seem convinced of the added value of this proposal and should not adopt a position before the European elections (see EUROPE 12147).
“Going further by giving more powers of control and objection to the notified Member State would call into question the very effectiveness of the instrument and its added value,” reacted the French Minister, Nicole Belloubet. Ireland has already announced that it will not accept any further “dilution” of the text.
However, work still needs to continue on the proposal for a Directive requiring service providers to appoint a legal representative within the EU, even if their headquarters are in a third country, who would be responsible for receiving and complying with injunctions.
Negotiation mandate for an agreement with the United States
Member States have also reiterated their request to the European Commission to inform them on the progress of the preparatory work on the negotiating mandate for an EU-US agreement on the US CLOUD Act (see EUROPE 12115), the equivalent of the EU's electronic evidence regulation. Now that the Council has adopted its position, the European Commissioner for Justice, Věra Jourová, has again undertaken to present it shortly. (Original version in French by Marion Fontana)