The Portuguese Presidency of the Council of the EU has started preparing its strategy for interinstitutional negotiations - due to start soon - with the European Parliament on the Commission’s proposal for a Regulation to facilitate access to electronic evidence in criminal investigations (see EUROPE 12003/18).
In a note prepared for the meeting of the working group of the Council on Cooperation in Criminal Matters (COPEN) on 15 January, the Presidency identifies the main differences between the position of Parliament, adopted in December 2020 (see EUROPE 12617/12), and that of the Council of the EU, which dates back to 2018 (see EUROPE 12155/6), and is already testing the ground with the Member States on the concessions that may or may not be made during the negotiations.
Its main concern: the rejection of the proposed directive by Parliament, which preferred to incorporate directly into the regulation a new article on legal representatives.
“The draft directive was discussed in the EU Council as a necessary complement to the draft regulation”, the Presidency recalls, while asking the Member States for their opinion on whether or not the initial structure of the package of measures should be preserved.
Parliament’s text also limits the obligation to appoint a legal representative to situations where the service provider is not established in the EU at all. Parliament has also proposed removing the option for Member States to address legal representatives on their territory with a national injunction for the production or retention of data, the Presidency points out.
Another notable difference between the positions of the EU Council and Parliament concerns the different categories of data.
While the EU Council maintained the four categories of data proposed by the Commission (subscribers, access, transactions, content) that can be requested through a European production or preservation injunction, Parliament has instead decided in favour of only three categories, namely subscriber, traffic and content data.
The note also asks the Member States if they would oppose Parliament’s categorisation, provided that the data on the start and end of a user’s access to a service and the IP address assigned by the Internet access provider to the user of a service and other data identifying the interface used were subject to the same conditions and safeguards as subscriber data when used for the same purpose, i.e. for user identification.
Other points of discussion identified by the Presidency include: the definition of service providers covered by the new rules, Parliament’s request to establish a common European digital exchange system for the processing of cross-border communications, and the reimbursement of costs incurred in the execution of European injunctions.
See the document: https://bit.ly/38zm9jc (Original version in French by Marion Fontana)