On Friday, 8 March, the European ministers of justice adopted their position ('general approach') on the proposal for a directive requiring service providers to appoint a legal representative within the European Union, who would be responsible for receiving and complying with European orders for the production and preservation of electronic evidence (see EUROPE 12003/18).
The text - endorsed by the Member States' ambassadors to the EU (Coreper) on 27 February (see EUROPE 12204/38) - contains few changes compared to the Commission's initial proposal.
It also adds joint and several liability for non-compliance with obligations by service providers and legal representatives and provides for the possibility of appointing the same legal representative for several service providers (see EUROPE 12201/14).
On Friday, only Germany abstained due to the “overrunning of the scope in relation to the instrument on electronic evidence". The text provides that legal representatives may also collect other types of evidence than electronic evidence and receive other law enforcement related requests, such as European investigation decisions. The country is concerned that this provision provides too much incentive to bypass national authorities and go directly through the legal representatives of service providers.
All in all, the European Commission was satisfied with the compromise text, with the exception of two points. The Commissioner of Justice, Věra Jourová, also regretted that Member States have removed the obligation for service providers to publish the contact details of their legal representatives directly on their internal websites. Instead, the Council of the EU text provides for a complete list of all designated legal representatives in the EU, published via the European Judicial Network in criminal matters.
It also considered that the extension of the deadline for transposing the directive to 18 months, instead of the six months proposed by the Commission, did not meet the urgent need to have the new rules in place.
Some ministers also took the opportunity to send a clear message to the European Parliament, which is far from ready to adopt its position and should not do so before the end of its mandate (see EUROPE 12189/15).
“It is a pity that we cannot build on this result immediately and start the negotiation with the European Parliament on this package. We need to transform this regrettable delay into an asset by making sure the next and current parliament is informed of all the issues at stake on this complex file. Let's avoid the stereotype debate: privacy vs security! Nuance and expertise will be required”, said Belgian Minister of Justice Koen Geens.
Others considered that the negotiations with the European Parliament should provide an opportunity to further deepen certain points. For Italy and Poland, in particular, consideration should be given to a minimum harmonisation of penalties for non-compliance. Greece, for its part, would like more clarity as to where the designated legal representative is to be established.
Agreement with the United States. On the same day, ministers also discussed, behind closed doors, the Commission's draft negotiating mandate for an EU-US agreement on cross-border access to electronic evidence (see EUROPE 12187/2).
According to a European source, discussions are at an early stage and further technical work is needed. The Council of the EU would plan to adopt the mandate in June. Commissioner Jourová will visit the United States in April to take stock with her American counterpart. (Original version in French by Marion Fontana)