The Slovenian Presidency of the Council of the European Union has started to prepare for the resumption of technical discussions with the European Parliament, after the summer break, on legislative proposals to facilitate access to electronic evidence in criminal matters (see EUROPE 12003/18).
In a note sent on Thursday 26 August to the Member States, it presents new ideas to move towards a compromise on the thorny issue of notification, with a view to the meeting of the EU Council Working Party on Judicial Cooperation in Criminal Matters (COPEN), which will take place on 1 September.
The European Parliament’s initial position requires notification to the enforcing State for all categories of data, whereas the EU Council’s position limits the notification obligation to production orders for content data and only in cases where the person whose data is sought does not reside in the territory of the issuing Member State.
Slovenia is determined to find an agreement on this issue during its Presidency of the EU Council (see EUROPE 12764/4).
The crux of the matter: the residence criterion
According to the note, the main bone of contention between the institutions remains the so-called residence criterion, which is strongly advocated by the EU Council and according to which notification to the enforcing State should only be required when there are reasonable grounds to believe that the person whose data is sought is not residing in the territory of the issuing State.
But the European Parliament continues to strongly oppose it, stressing the need to ensure that the enforcing State is able to exercise control over legal actions within its jurisdiction and rejecting the argument that the application of the principle of mutual trust would be sufficient.
“The impression of the Presidency is that the European Parliament is not ready to move on its requirement that all traffic and content data must be notified, regardless of the residence of the person concerned. The application of the residence criterion thus appears to be a particularly hard nut to crack”, writes Ljubljana
A lighter and a stronger notification regime
However, the Parliament seems “open” to the idea that notification for subscriber and other identifying data could be for information purposes only, the note says.
However, it remains to be seen what exactly is meant by an “information only” notification and what the consequences are. According to the Presidency, it will have to be decided, inter alia, whether this type of notification should be made systematically for each injunction or whether a mechanism of “periodical notifications in block” (e.g. once every six months) could be considered instead.
In order to preserve its residence criterion and take advantage of this openness on the part of the European Parliament, the Slovenian Presidency proposed two notification regimes; one lighter and one stronger.
The lighter regime would apply to orders for the production of subscriber data or other identification data - considered less sensitive - as well as to all other data where the person resides in the State where the order is issued. It would either provide for no notification at all or notification for information purposes only, which would have limited or no consequences, and could also provide for a mechanism whereby service providers would be required to inform the competent authority in their countries when data is provided to the issuing State. The information provided could possibly be sent periodically and in blocks.
The stronger regime would provide for full notification to the enforcing State of the order and the application of grounds for refusal of enforcement. It would apply to production orders for traffic and content data, except where the person whose data is sought is residing in the territory of the issuing State. In the latter case, the lighter regime would apply.
“It should be underlined that there are currently no signs that the European Parliament would be prepared to agree to such a compromise”, the Slovenian Presidency warns, while asking Member States whether such a solution would be satisfactory to them.
The note also addresses the crucial issue of the role of service providers and in particular whether a service provider should be required to assess whether an order is abusive and be allowed, in such a case, to refuse it.
See the note: https://bit.ly/3sP0ETW (Original version in French by Marion Fontana)