On 22 December, the French Presidency of the Council of the EU (FPEU) presented Member States with its strategy to attempt to break the deadlock in the interinstitutional negotiations (‘trilogue’) on the cross-border exchange of electronic evidence (‘e-evidence’).
Described on 10 December as being “at an impasse” by Slovenian Minister of Justice Marjan Dikaučič (see EUROPE 12851/2), negotiations between the Council of the EU and the European Parliament are deadlocked on several points, such as the division of jurisdiction between the state where a data production order is issued and the state where the organisation responsible for executing that order is located (see EUROPE 12778/2).
In practice, the FPEU proposes favouring a “global approach” by distinguishing among the issues that remain on the table by “their nature—political or technical—and by their degree of contention”.
In concrete terms, the FPEU’s approach will be based on five ‘pillar’ subjects: the precise definition of the scope of the instruments, balanced notification, protection of the rights of the individual, the effectiveness of the modes of enforcement, and respectful treatment of the evidence obtained.
The FPEU thinks that this will enable certain provisions included in the text that have the same purpose but are not located in the same articles to be grouped together.
These provisions will be able to be “worked on together, so as to find a compromise balance more easily, with several focal points. The goal would not initially be to reach an agreement on each topic separately but to fit them together in the framework of a global compromise package”, explains the French Presidency of the Council of the EU.
The Working Party on Judicial Cooperation in Criminal Matters (COPEN) will examine the outstanding issues in the first topic—the definition of the scope—on 12 January. Subsequent groups will then work on the remaining topics.
On this basis, the FPEU indicated that the objective of such an approach remains the resumption of trilogue discussions as soon as possible.
See the document (in French): https://bit.ly/3JK7LFt (Original version in French by Thomas Mangin)