The European Commission briefed the European Parliament’s Committee on Civil Liberties (LIBE), on Tuesday 13 April, on the ongoing negotiations on access to electronic evidence within the Council of Europe. According to the Commission, the work, at the technical level, could be finalised next month.
The Commission had been given a mandate in 2019 to participate, on behalf of the EU, in the negotiations on the Second Additional Protocol which aims to modernise the Council of Europe’s Budapest Convention on Cybercrime (see EUROPE 12260/26).
“The Convention went into force in 2001 and since then, in particular the access to electronic evidence has become increasingly important for criminal investigations”, recalled Cathrin Bauer-Bulst, who heads the European Commission’s cybercrime unit (DG HOME).
This modernisation is made all the more urgent by the fact that in December 2019, the UN General Assembly adopted a resolution, sponsored by China and Russia, to start negotiating a UN treaty on Cybercrime, which is envisaged as an alternative to the Budapest Convention.
“This process raises a number of questions because we do not see a need or value for a new Treaty”, said the European Commission representative. For this representative, concluding the second protocol would send “a strong signal with regard to the continued relevance of the Budapest Convention”.
To date, the parties have negotiated a number of provisions - which have already been published and put out for public consultation - including provisions on more efficient and expeditive form of mutual legal assistance.
Several of them are actually based on the Council of Europe’s Convention on Mutual Assistance in Criminal Matters, indicated Ms Bauer-Bulst.
Interaction with EU rules
Some of the negotiated provisions are based on the concept of direct cooperation between authorities and service providers.
Several of them resemble the European Commission’s April 2018 e-evidence proposals (see EUROPE 12684/10), but “in a much more modest form to take account of the diverse group of 65 parties to the Commission, where we cannot rely on the level of mutual trust that we have within the EU”, stressed the EU official.
The negotiating mandate given to the Commission obliges it to take account of the European legislative proposals on electronic evidence and to consider additional safeguards and grounds for refusal, if necessary.
The concept of direct cooperation in the protocol has thus been limited to subscriber data. In addition, the draft protocol contains a “disconnection clause” specifying that within the EU, European rules apply and that the protocol will only apply to cooperation with non-Member States, she said.
Fundamental rights and data protection
MEPs’ questions focused on fundamental rights and data protection, which were major elements of the negotiating mandate given to the European Commission.
The Commission has worked to ensure a “rights-based approach” and to develop safeguards that meet the requirements in the Opinions of the European Data Protection Supervisor and the European Data Protection Board, Ms Bauer-Bulst assured.
“The negotiations have shown that it is possible to find common ground and convergence safeguards to ensure a high level of protection”, she confirmed.
These provisions are expected to be published online this week for public consultation. (Original version in French by Marion Fontana)