The Portuguese Presidency of the EU Council wants to take a step towards the European Parliament on the thorny issue of notification with regard to legislative proposals to facilitate access to electronic evidence in criminal investigations (see EUROPE 12003/18). The subject was discussed on Thursday 10 June at the meeting of the EU Council ‘Working Party on Cooperation in Criminal Matters’ (COPEN).
The European Commission recently asked EU co-legislators to be open on this issue to find a compromise (see EUROPE 12735/4). A third ‘trilogue’ took place on 20 May and no agreement was reached at this stage on the issue of notification.
In a note prepared for the COPEN meeting and of which EUROPE has received a copy, the Portuguese Presidency indicates that it wishes to “explore new avenues for discussion with the delegations” on this subject, “in order to make the negotiations progress and to manifest the willingness of the EU Council to reach a compromise”.
It should be recalled that the European Parliament’s position requires notification for all data categories and all types of orders, whereas the EU Council’s position limits the notification obligation to production orders for content data, and only for cases where the person whose data are sought does not reside on the territory of the issuing Member State. The European Parliament also requires a special procedure when the injunction is issued by one of the Member States subject to an ‘Article 7’ procedure on the Rule of law.
In particular, the Presidency asks Member States whether they could consider a two-layered notification system for production orders regarding the data categories: one for subscriber data and data necessary to identify an individual and the other for content and traffic data.
The Presidency also says that alternative notification systems, combining elements of the respective systems proposed by the institutions, could be constructed on the basis of the following options: - no notification at all (proposed by the EU Council for all situations except for content data in non-domestic situations); - notification for information only (proposed by the European Parliament for Preservation Orders) ; - notification with a possibility of the notified State to react to the issuing authority on a very limited set of grounds but not to refuse the order (proposed by the EU Council for content data); - notification with a short list of grounds for refusals (proposed by the European Parliament for subscriber data and other data necessary to identify a person); - notification with a longer list of grounds for refusals (proposed by the European Parliament for traffic and content data).
The note also contains an updated informal version of the four-column table and an indicative consolidated version of the text of the Regulation. It can be found at: https://bit.ly/3vc0oOD (Original version in French by Marion Fontana)