On Thursday 7 December, MEPs of the European Parliament's Committee on Civil Liberties (LIBE) continued their detailed examination of the proposal for a 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).
MEPs discussed two new working documents (see EUROPE 12156): one on the scope of the Regulation and its relationship with other existing legal instruments; the other on the enforcement of injunctions and the role of service providers.
The first document, drawn up jointly by Birgit Sippel (S&D, Germany) and Nuno Melo (EPP, Portugal), reiterates the Parliament's doubts about the question of the legal basis chosen by the European Commission, namely Article 82 of the Treaty on the Functioning of the European Union.
The legal instruments adopted so far by the EU in the field of judicial cooperation on the basis of this article all provided for systematic mutual recognition between the judicial authorities of the Member States and not with service providers directly, Ms Sippel recalled.
For MEPs, using this legal basis would then require a stronger commitment from the judicial authority of the Member State where the injunction is enforced. This brings us back to the question that had long animated discussions in the EU Council (see EUROPE 12115).
But MEPs could go even further by providing for the possibility for the authority of the executing Member State to oppose the enforcement of the injunction. In their document, they questioned whether the notification procedure proposed by the Council, which was purely informative and had no suspensive effect, was sufficient (see EUROPE 12155).
For Tania Schroeter of the European Commission's Directorate-General for Justice, the issue is not related to the legal basis and is rather political.
"We are quite confident actually that the legal base does not require such systematic involvement of another authority. This is not written in the text. And even other mutual recognition instrument have taken this approach, that does not mean that the legal base does not allow this other approach we are proposing here", she argued.
The choice of a regulation rather than a directive is equally controversial in the document. Here again, the Commission justified its choice. "The new rules will directly create rights and obligations for service providers, which is why we need common rules and not different national rules transposing the Directive", said Ms Schroeter.
Role of service providers. The second working paper, jointly prepared by Birgit Sippel and Daniel Dalton (ECR, UK), addresses the enforcement of injunctions by service providers and criticises in particular the "role of guardians of fundamental rights" conferred on them.
Several other points are also addressed, such as the too short deadlines for providers to provide the requested data, the improvement of the security of data transmission between providers and law enforcement authorities and the proposal that the costs of implementation be covered by the executing State and not by the issuing State of the injunction.
Dutch MEP Sophie in't Veld (ALDE) praised the work done by her colleagues before attacking the Commission, accusing it of having tabled a "badly drafted and not well thought" proposal.
"The Commission knows that with this text, it is entering unknown territory. Here, the architecture of judicial cooperation is being completely changed, without a careful analysis of the consequences", warned Birgit Sippel.
For her, one thing is certain, if the architecture is modified, without first checking the foundations, the building risks collapsing. (Original version in French by Marion Fontana)