While the Council of the European Union has just adopted its position on the Regulation on European Production and Preservation Orders for electronic evidence in criminal matters that can be directly addressed to a service provider in another Member State (see EUROPE 12003), the rapporteur in the European Parliament, Birgit Sippel (S&D, Germany), intends to take her time and examine all the implications of the legislative text.
On Monday 10 December, Ms Sippel presented not a draft report but a working document identifying the main legal problems with this regulation to the European Parliament’s Committee on Civil Liberties.
This working document is the result of the many consultations with stakeholders that Parliament has carried out, she explained in the introduction (see EUROPE 12147, 12102).
The rapporteur first of all reiterates her concerns about the introduction of the principle of extraterritorial application of the law (see EUROPE 12090) and the Commission's broad interpretation of Article 82 of the Treaty as a legal basis (see EUROPE 12066). Another common criticism in this document is the role of service providers as “guarantors of legality”.
The definitions of the categories of data that may be requested, depending on their “sensitivity", are also reported to be incorrect and would not be aligned with those existing in other EU legal instruments.
The document also raises doubts about the criminal offences for which European injunctions can be issued and emphasises that the principle of double criminality would no longer apply.
This problem is, according to Ms Sippel, further aggravated by the fact that the proposal provides only weak guarantees of procedural rights. For example, the text only provides for an effective right of appeal to the court of the issuing Member State in accordance with its national law, even where the person concerned does not reside in that country, she explains.
Further thematic working papers are expected on: - the scope and relationship with other legal instruments; - the relationship with the law of third countries; - the conditions for issuing injunctions; - their enforcement and the role of service providers; - their enforcement, and; - safeguards and remedies.
There is therefore still a long way to go before Parliament is ready to negotiate with the Council. (Original version in French by Marion Fontana)