Negotiators from the EU Council and the European Parliament held a fourth negotiation meeting on 9 July on legislative proposals to facilitate access to electronic evidence in criminal investigations (see EUROPE 12003/18). No agreement has been reached on the thorny issue of notification, but Slovenia believes that such an agreement could be reached under its Presidency of the EU Council.
“The exchange was very constructive and ended on an optimistic note (...) We are carefully optimistic that during the Slovenian Presidency we can reach an agreement on the system of notifications”, a spokesperson for the Slovenian Presidency in Brussels told EUROPE.
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 requirement 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 make a move towards Parliament, the Slovenian Presidency submitted two options to Member States at the end of June (see EUROPE 12752/5): - option A, which somewhat modifies the general approach adopted by the EU Council and which reportedly includes a notification requirement only for content and traffic data other than that used for the sole purpose of identifying the user, as well as limited optional grounds for refusal linked to such notification; - option B, which would maintain the general approach adopted by the EU Council on this issue.
In a note obtained by EUROPE, the Slovenian Presidency indicates that negotiators discussed “basic principles of notification” during the fourth ‘trilogue’.
In particular, they discussed the issue of a possible differentiation of the notification regime between more and less sensitive data, with a view to identifying the possible scope for an overall compromise solution. They also exchanged views on the safeguards that would be needed in cases where no notification was provided.
Negotiators on both sides also discussed the advantages and disadvantages of any kind of suspensory effect of injunctions as well as the possibility of a compromise solution for the grounds for refusal, linked to a possible prior consultation between the issuing State and the State enforcing the injunction.
“There has not been any agreement on the notification as such for the moment, but both institutions seem ready to move a bit towards each other in order to allow for a compromise”, a parliamentary source told us.
According to this source, Parliament particularly appreciated the discussions in the EU Council on the Slovenian Presidency’s option A proposal, which was seen as “a development in the right direction”, but which “doesn’t reflect the Parliament’s position sufficiently”.
The co-legislators agreed to resume technical negotiations on notification in September. The date of the next political ‘trilogue’ has not yet been set and will depend on the progress of the technical work.
See the note: https://bit.ly/2VJqhsR (Original version in French by Marion Fontana)