After two years of work, the European Parliament’s Committee on Civil Liberties (LIBE) is finally set to adopt its position on Monday 7 December on the draft report by Birgit Sippel (S&D, Germany) on the proposals for a Regulation and a Commission directive to facilitate access to electronic evidence in criminal investigations (see EUROPE 12003/18).
Originally scheduled for March, the vote had to be postponed due to the Covid-19 pandemic (see EUROPE 12462/17), and negotiations between the political groups were only able to resume in September.
According to our sources, the text has a good chance of obtaining the majority required for its adoption, even though the Greens/EFA group is expected to vote against it.
The crux of the negotiations focused on the involvement of the State in which enforcement is sought (see EUROPE 12439/9) - i.e. the country in which the service provider receiving a European order for the production or preservation of electronic evidence is established - with a division between the S&D, Greens/EFA and GUE/NGL groups, which are in favour of strong involvement, and the EPP, ECR, ID, and Renew Europe groups, which prefer a streamlined procedure.
The compromises drawn up between the political groups, seen by EUROPE, require that a European production order for subscriber data and IP addresses must be addressed directly to the service provider and simultaneously to the enforcement authority, which has the option of opposing it.
However, this notification would not have a suspensory effect on the service provider’s obligation to provide the requested data within 10 days (16 hours in case of emergency).
For content and traffic data, the same rules would apply, except where the issuing State is subject to an ‘Article 7’ Rule of law procedure. In this case, the service provider would only transmit the requested data after receiving the explicit written consent of the enforcement authority.
The final text is also expected to require that the Commission set up a common European network, with secure channels, for the transmission of injunctions and requested data between competent authorities and service providers.
In addition, Parliament has included in the Regulation provisions on the appointment of legal representatives within the EU for service providers that operate in the EU but are established in a non-Member State. This legal representative would then be responsible for receiving and complying with the injunctions.
Protection of fundamental rights
At an online conference organised by the German Land of Hesse on Friday 4 December, German MEP Moritz Körner, who is negotiating on behalf of the Renew Europe group on these proposals, reported on particularly “difficult” negotiations to find the right balance between efficiency and respect for fundamental rights.
With regards to the protection of fundamental rights, the compromises also specify that “nothing in this Regulation shall be interpreted as prohibiting the refusal to execute a European production order where there are reasons to believe, on the basis of objective facts, that it has been issued for the purpose of prosecuting or punishing a person on account of his or her sex, racial or ethnic origin, religion, sexual orientation or gender identity, nationality, language or political opinions”.
The text also stresses that European data production and retention orders are based on mutual trust. Nevertheless, if the enforcement authority has serious reasons to believe that the enforcement of an injunction would not be compatible with its obligations to protect fundamental rights, the enforcement of the injunction should be refused, the text states.
MEPs also set out a long list of grounds for non-recognition or non-execution of the order by the enforcement authority. For a production order for content and traffic data, for example, the text provides that the enforcement authority may refuse to execute the order if it would harm essential national security interests or jeopardise the source of the information, or if the conduct for which the order was issued does not constitute a criminal offence under the law of the executing State.
Furthermore, they state that if the European Council were to adopt a decision finding that there is a serious and persistent breach of the principles laid down in Article 2 of the TEU in the issuing Member State, such as the Rule of law, the judicial enforcement authority could decide to raise, of its own accord, one of the grounds for non-recognition or non-enforcement provided for in the Regulation, without having to make a specific assessment.
Commission warning before the vote
During the web conference, European Commissioner for Justice Didier Reynders recalled that the Commission’s initial ambition was to have a more efficient mechanism than the existing tools and that it is important not to overburden Member States’ judicial systems by adding too many additional checks.
Furthermore, the creation of “safe havens for criminals” should be prevented by excluding access to electronic evidence in some Member States, the Commissioner insisted.
In his view, a general and simple mechanism must first be put in place, before considering whether exceptions are needed. (Original version in French by Marion Fontana)