National experts of the EU Council have started work on the proposal for a Directive requiring service providers to appoint a legal representative within the EU who would be responsible for receiving and complying with European orders for the production and preservation of electronic evidence (see EUROPE 12003).
Under the Bulgarian Presidency of the Council work had indeed focused on the Regulation on European injunctions, for which a general approach was agreed upon in December (see EUROPE 12155), but the Directive had been left out.
As the Romanian Presidency takes over, they have focused the discussions on two main points, a European source told us on Monday 28 January. First, it would consider "more concrete criteria" regarding the location of a designated legal representative.
The text requires the service provider offering services in the Union - whether established in the EU or in a third country - to appoint at least one legal representative responsible for compliance with European electronic evidence collection injunctions.
However, it only specifies that this representative must reside or be established in one of the Member States where the service provider is established or offers their services.
The question currently under consideration by the Council is whether to give the service provider complete freedom as to where his legal representative should be established or whether to this choice should be guided by the Council.
According to the same source, Germany has made several proposals in this regard. They have also suggested that the place where the service provider has a "significant proportion of its users” should be retained as a criterion.
All in all, the Member States would rather support the idea of having complementary criteria, but they are also well aware of how difficult it is to set criteria that are easy to use and proportionate. According to the same source, it is therefore possible that Member States may finally decide to revert to the Commission's original draft text on this point.
Second open discussion: sanctions applicable to service providers who have not appointed legal representatives.
The Commission's text leaves it to Member States to determine the applicable sanctions regime, specifying only that they must be "effective, proportionate and dissuasive."
The Romanian Presidency then proposed that the possibility of some harmonisation within the sanctions regime should be considered. In particular, it suggested that, in order to reflect the economic situation in each Member State, the penalties could be calculated as a percentage of the service provider's annual or monthly revenue.
Nothing has yet been decided on these two points and the considerations have only just begun. Only two working group meetings were held, the third being scheduled for Thursday 31 January.
The Romanian Presidency’s objective is a general approach between the Member States by June (see EUROPE 12173). Be that as it may, if the discussions progress well, the dossier could be on the European Ministers of Justice’s table as early as March.
There is no real urgency, since the proposal for a Regulation is currently blocked in the European Parliament (see EUROPE 12147) and the European Parliament has not yet started to work on the Directive. However, the Regulation and the Directive should logically be the subject of parallel negotiations. (Original version in French by Marion Fontana)