On Monday evening, 11 March, MEPs on the European Parliament's Committee on Civil Liberties (LIBE) examined two new working documents identifying the legal issues raised by the proposal for a regulation introducing European orders for the production and the preservation of electronic evidence that can be directly addressed to a service provider in another Member State (see EUROPE 12003/18).
“In contrast to the Council, who rushed through the proposals within a couple of months, presenting a general approach already in December, we decide to thoroughly check the proposals. And when deciding so, we were aware that this would mean we would not have an agreement before the end of the mandate “, said rapporteur Birgit Sippel (S&D, Germany).
She added: “However, only having in mind the findings from the first three working documents (see EUROPE 12189/15), and even more with the two presented today, I am quite reassured that we took the right decision”.
The two working documents presented on Monday deal with the conditions for issuing injunctions and their relationship with the laws of third countries.
MEPs always come to the same overall conclusion: this instrument for direct cooperation between judicial authorities and service providers goes too far. In their view, the necessary safeguards must be in place and there must be provision for a system of notification to the executing Member State, allowing it to oppose the enforcement order.
“The list of legal issues and question marks is very, very long and it makes it very clear that this proposal is not mature”, said Dutch MEP Sophie in't Veld (ALDE).
The working document she co-authored also looks at the draft negotiating mandate presented by the Commission in early February for a transatlantic agreement on electronic evidence (see EUROPE 12187/2).
The document also concludes that, by using the existing Mutual Legal Assistance Treaty between the EU and the United States, Member States already have ample opportunity to access data stored across the Atlantic. While the Commission has cited the very long delays involved in using this mechanism as justification, the document highlights that the main factor preventing usage is the lack of financial, human and technological resources provided by the Member States themselves.
“Until we have exhausted all the possibilities for improving the MLAT, I do not think we should be talking about a transatlantic agreement“, the Dutch MEP said.
Two other documents are being prepared and will be presented on 2 April. (Original version in French by Marion Fontana)