Member States' ambassadors to the EU (Coreper) are expected, on Wednesday 27 February, to endorse the Romanian Presidency compromise text of the Council of the EU regarding the proposal for a directive requiring service providers to appoint a legal representative within the European Union.
This person would be responsible for receiving and complying with European orders for the production and preservation of electronic evidence (see EUROPE 12003).
At first, the Presidency had considered “more concrete criteria” regarding the location of the designated legal representative (see EUROPE 12181); however, it finally returned, for the sake of simplicity and proportionality, to the Commission's initial proposal, a European source told EUROPE on Monday 25 February.
The text therefore only specifies that the designated legal representative must reside or be established in one of the Member States in which the service provider is established or offers its services.
The same logic would have been applied to those sanctions applicable to service providers who have not appointed legal representatives. Finally, the special agreement text keeps the Commission's text, meaning it is up to the Member States to determine the applicable penalty regime, specifying only that these must be effective, proportionate and dissuasive. However, it adds in a recital that the penalty may not extend to include a withdrawal of the service provider's authorisation.
It should be noted that the special agreement also provides for the option of appointing the same legal representative for several service providers, in particular for SMEs wanting to reduce costs.
The special agreement text additionally sets out clearer joint responsibility between the legal representative and the service provider. The point here, according to our source, is to ensure that they do not “pass the buck” in the event of a breach of their obligations.
The list of all appointed legal representatives in the EU should be public and should be included on the website of the European Judicial Network and in the future electronic evidence exchange system that will be set up.
The transposition deadline has been extended to 18 months instead of the six months proposed by the Commission. The idea, according to this same source, is to have a legal representative in place and ready to be operational six months before the application of the Regulation on European orders for the production and preservation of electronic evidence, which is set at 24 months after its entry into force in the Council text (see EUROPE 12146).
The text needs to be submitted for agreement to the European Ministers of Justice at their meeting on 8 March. (Original version in French by Marion Fontana)