Members of the European Parliament’s Committee on Civil Liberties (LIBE) have reviewed, Tuesday 28 January, the long list ofamendments submitted for the draft report by Birgit Sippel (S&D, Germany) on the Commission’s proposals for a Regulation and a Directive to facilitate access to electronic evidence (see EUROPE 12003/18).
A total of 841 amendments on the Regulation, as well as 26 on the Directive, have been submitted. According to the rapporteur, the examination of the amendments shows that a large majority of political groups do not support the Commission’s original proposal, but also that many of them wish to strike a better balance between the needs of law enforcement agencies and the protection of fundamental rights.
Overall, according to Mrs Sippel, there seems to be a consensus that there should be greater involvement of the executing state, i.e. the country in which the service provider receiving a European order for the production or preservation of electronic evidence is established. Opinions differ, however, as to how this notification procedure should be designed.
“Some groups are in favour of a very robust notification procedure with suspensive effects, including preservation and production orders, and covering all categories of data, whereas I proposed that the requested data, within the time limit proposed by the Commission - normally 10 days - shall be disclosed or preserved in the absence of any objection from the enforcement authority”, she explained.
“Others are in favour of a more downgraded notification procedure without suspensive effects, limited to production orders only and only for the most sensitive categories of data. The notified State might in this case object to the order, but the data might already have been produced. Furthermore, several groups have proposed objecting to production orders only where the affected person is residing in another Member State”, she continued.
Fearing that the system proposed by the rapporteur is too complex, the EPP supported notification without suspensive effect, only for the European production order, for transaction and content data only, and only in cases where the issuing authority has reasonable grounds to believe that the person is not resident in the issuing State. According to the group, the notified authority should not have the obligation to decide, but only the right to object on the basis of a predefined list of grounds.
The group also suggests extending the proposed deadline for the production of electronic evidence in urgent cases to 8 hours, as opposed to 6 hours proposed by the Commission and 24 hours by the rapporteur.
In general, the Greens/EFA group supports “the broad lines and the direction” of Mrs Sippel’s draft report, said the shadow rapporteur for the group, Sergey Lagodinsky (Greens/EFA, Germany). However, in its view, notification alone will not be sufficient to adequately guarantee fundamental rights.
According to Moritz Körner (Renew Europe, Germany), a compromise could be found: - by limiting the scope to domestic cases; - allowing for rapid transfer of non-content-related data to identify an individual; - limiting the participation of countries subject to an Article 7 procedure in the EU to certain injunctions; - excluding the right to request the data of individuals exercising a protected profession, such as journalist.
On the previous day in the LIBE Committee, the Croatian Minister of Justice, Dražen Bošnjaković, urged MEPs to adopt their position. “Postponing a decision on this instrument will have a global impact”, he warned, referring to the ongoing negotiations on the conclusion of an EU-US agreement (see EUROPE 12376/12) on cross-border access to electronic evidence.
The shadow rapporteurs have already held two working meetings in January and will continue their work next week to find compromises, Sippel said. At this stage, the vote in committee is scheduled for March. (Original version in French by Marion Fontana)