Subsequent to the first inter-institutional meeting on legislative proposals to facilitate access to electronic evidence in criminal investigations (see EUROPE 12003/18), German MEP Sergey Lagodinsky, shadow rapporteur for the Greens/EFA group, showed he was determined to improve the text.
“We can aim even higher”, he said on Thursday 11 February, at a briefing with several experts.
As is customary, the first political trilogue was ‘exploratory’ and mainly aimed at taking stock of each other’s positions. The technical work will now begin and the European Parliament will have to determine its strategy for defending its position, which the MEP considered much more “progressive” than that of the Member States (see EUROPE 12155/6).
In doing so, Mr Lagodinsky did not rule out the possibility that new elements could be included at this stage, as part of the negotiation box, provided that they were accompanied by sufficient political and public pressure.
And it has to be said that stakeholders do indeed expect much more. Starting with the think tank CEPS, which published a report in October 2020 calling on the European Commission to withdraw its legislative proposals (see EUROPE 12581/13).
None of the various proposals put forward so far by the European institutions would guarantee systematic or meaningful involvement of the Member State enforcing the European Data Production Order, said Marco Stefan, one of the authors of the report.
This is also what worries European Digital Rights (EDRi), which had expressed serious concerns when the proposals were published in 2018 (see EUROPE 12004/23). According to Chloé Berthélémy, Policy Advisor at EDRi, the explicit agreement of the executing Member State is required before the requested data is handed over, even if this means giving more resources to the national judicial authorities.
It is not only the notification to the executing Member State that should be improved, but also the notification to the person whose data is being requested. “Notification is also a matter of equality of arms”, said Laure Baudrihaye-Gérard, senior lawyer specialising in European law at FairTrials. Without a notification of this kind, that person will not be able to challenge the legality of the application or appeal against the decision.
Also from the lawyer’s perspective, Ulrike Paul, Vice-President of the German Federal Bar Association. (‘Bundesrechtsanwaltskammer’ or BRAK), considered that the European Commission’s initial proposals seemed “rushed” and that the position of the Council of the EU was “far from sufficient”.
For Jürgen Burggraf from the German public broadcasting organisations (ARD), above all there must be a total exemption for journalists - something that no proposal has so far introduced, although the European Parliament text makes some improvements, he admitted. “The position taken by the European Parliament is the absolute minimum that should be guaranteed”, according to him.
In December 2020, the Greens/EFA group voted against the report by Birgit Sippel (S&D, Germany), considering in particular that data protection for journalists, doctors and lawyers was insufficient, as were the guarantees for Member States that are subject to the ‘Article 7’ procedure for violation of the Rule of law (see EUROPE 12617/12). These are all issues that Mr Lagodinsky intends to raise again during the negotiations. (Original version in French by Marion Fontana)