The interinstitutional (‘trilogue’) negotiations on the legislative proposals to facilitate access to electronic evidence in criminal investigations (see EUROPE 12003/18) will resume at political level on Thursday 18 March (see EUROPE 12676/38).
According to a note from the Portuguese Presidency of the EU Council dated 15 March and seen by EUROPE, the co-legislators should take note of the progress made at technical level since the first ‘trilogue’, which took place on 10 February, and agree to notification being the next topic to be discussed at the technical level.
The degree of 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, has been a source of concern both to the Council of the EU (see EUROPE 12155/6) and to the European Parliament (see EUROPE 12439/9 ). Negotiations on this point are therefore likely to be particularly difficult and could resurrect old divisions.
So far, the co-legislators have held four technical meetings - the last one on 10 March - which focused on the definition of service providers, data categories, reimbursement of costs, and the Common European Exchange System.
According to the note, progress has been made on the subject of proposals, the definition of a service provider and the definition of subscriber data, where preliminary agreements at technical level have been reached.
In particular, the co-legislators agreed that the issuance of a European order for the production or preservation of electronic evidence can also be requested by a suspect or accused person, or by a lawyer on their behalf, in the context of the rights of defence and in accordance with national criminal procedures.
Discussions are also progressing on data categories, although it has not yet been possible to reach a compromise on the exact wording.
It should be recalled on this issue that the EU Council had decided to maintain the four categories of data proposed by the Commission (subscribers, access, transactions, content) that can be requested by means of a European order, whereas Parliament had decided in favour of only three categories (subscribers, traffic, content).
According to the note, the co-legislators agreed that the data needed to identify the subject whose data is sought should be subject to a lighter regime, similar to that of subscriber data, and that such data should be defined in a sufficiently prospective and technology-neutral manner.
However, no progress has yet been made on the reimbursement of costs incurred in enforcing European injunctions. It became apparent that the positions of the co-legislators were very distant, with Parliament insisting on harmonisation which the EU Council strongly opposes, explains the note.
Finally, with regard to Parliament’s request to establish a Common European Exchange System for the processing of cross-border communications, it was agreed to postpone this topic to a later date.
See the four-column table which shows the state of negotiations : http://bit.ly/2NmnQbY (Original version in French by Marion Fontana)