The incoming Slovenian Presidency of the EU Council, which will officially take office on Thursday 1 July, has already started working on the ongoing negotiations regarding legislative proposals to facilitate access to electronic evidence in criminal investigations (see EUROPE 12003/18).
“The intention of the incoming Presidency is to first explore what room there is for a balanced compromise text on the key issues of notification and grounds for refusal”, says a note copied to EUROPE. The Presidency’s objective is that the next ‘trilogue’, scheduled for 9 July, should define the main pillars of a compromise on these issues.
The European Commission recently called on the EU co-legislators to be open on this issue in order to find a compromise quickly (see EUROPE 12735/4).
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 orders for content data, and only for cases where the person whose data is sought does not reside on the territory of the issuing Member State.
In an attempt to take a step towards Parliament, the Slovenian Presidency decided to submit two options to the Member States.
Option A
Option A modifies somewhat the general approach adopted by the EU Council and is based on the indications gathered during the formal and informal consultations that have taken place over the last months.
This solution would include a notification regime that would be structured to take into account the specific characteristics of different data categories. Data production orders that would involve a greater degree of intrusiveness - for example, content data - should be treated differently from orders concerning, for example, subscriber data.
The compromise should thus include a notification obligation only for content and traffic data other than traffic data used for the sole purpose of identifying the user. The residency criterion of the EU Council’s general approach would also be maintained.
A provision for limited optional grounds for refusal linked to this notification must be considered, if, for example, the execution of the order would undermine national security interests or if the order would be incompatible with Article 6 of the Treaty on European Union and fundamental rights, this would also allow for the executing State to take into account the fact that the issuing State is subject to a procedure under Article 7 on the Rule of law, as Parliament wishes.
Furthermore, the service provider in question would not have the right to object to an order and, in the event of a notification being in place, no prior consultation would be required.
Option B
Option B is based on the assumption that the EU Council will maintain its position and continue to strongly defend its general approach to notification and grounds for refusal.
According to the note, this is currently the “preferred option for delegations”, but in this case the incoming Presidency then invites Member States to indicate what parts of the relevant provisions they believe could be open for modifications with a view to meet the positions expressed by Parliament.
Slovenia clarifies that this note does not express a preference or a definite position of the future Presidency for either of the solutions.
Both options are to be discussed on Friday 2 July in the EU Council Working Party on Cooperation in Criminal Matters (COPEN).
See the text: https://bit.ly/2TcQFL7 (Original version in French by Marion Fontana)