Members of the European Parliament’s Committee on Civil Liberties (LIBE) adopted on Monday 7 December by 35 votes in favour, 22 against and 7 abstentions the draft report by Birgit Sippel (S&D, Germany) on the Commission proposal for a Regulation to facilitate access to electronic evidence in criminal investigations (see EUROPE 12003/18).
All the compromises reached between the political groups (see EUROPE 12616/10) were adopted. The MEPs approved (55 votes in favour, 7 against and 2 abstentions), on the same day, the opening of interinstitutional negotiations with the Council of the EU, which adopted its position in 2018 (see EUROPE 12155/6).
“After intense debates, we have managed to put forward a LIBE report which strikes the balance between law enforcement needs and the necessary fundamental rights protection”, welcomed Ms Sippel after the vote.
The crux of the negotiations between the political groups was the degree of involvement by the implementing State (see EUROPE 12439/9), i.e., the country in which the provider of services receiving a European production order or preservation of electronic evidence is established.
The final text provides that a European production order to obtain data on subscribers or IP addresses should be addressed directly to the service provider and, at the same time, to the enforcement authority, which could refuse recognition or enforcement of the injunction where such refusal is based on specific grounds listed in the Regulation.
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).
MEPs set stricter criteria for the European production order for content and traffic data deemed more sensitive: it could only be issued for criminal offences punishable in the issuing state by a custodial sentence of at least 3 years.
Furthermore, where the issuing State is subject to an Article 7 procedure on the Rule of law, the service provider should only transmit the requested data with the explicit written consent of the enforcement authority.
It should be noted that the European Parliament also decided to reject the Commission’s proposal for a directive and provisions on the appointment of legal representatives within the EU for service providers who operate in the EU but are established in a non-Member State are included directly in the Regulation.
Insufficient guarantees for environmentalists and liberals
The Greens/EFA and Renew Europe groups indicated that they had voted against the report, considering that data protection for journalists, doctors and lawyers was insufficient, as were the guarantees for Member States subject to an Article 7 procedure.
“Orbán will be able to use this tool to identify people criticising the Hungarian government under a pseudonym online. Kaczyński will be able to identify who communicated with abortion clinics in the EU”, worried German Moritz Körner, negotiator on behalf of Renew Europe.
German MEP Sergey Lagodinsky, shadow rapporteur for the Greens/EFA, also criticised the fact that the proposal obliges suppliers to decide whether an injunction is justified, whereas they are “private companies that are no legal experts and are not equipped to be the final guardians of fundamental rights”.
These political groups still hope to move the lines in the forthcoming interinstitutional negotiations.
For his part, the rapporteur expects complicated ‘trilogues’. “If we do not want to end up with a new instrument that will crack before our Courts, the Commission and the Council will have to substantially move to Parliament’s direction and accept that it’s not only about speeding up the access to electronic information, but also to make sure that fundamental rights and the rule of law are fully protected”, Ms Sippel warned. (Original version in French by Marion Fontana)