Following an interinstitutional meeting (‘trilogue’) lasting several hours on Tuesday 28 June, the European Parliament and the Council of the EU agreed “on the key elements” of the regulation and directive on electronic evidence, according to the French Presidency of the Council of the EU. The regulation should facilitate access to electronic evidence in criminal investigations. The directive requires service providers to appoint representatives in the EU to respond to such requests for e-evidence from judicial authorities.
Negotiations had been stalled for a long time due to widely differing positions on several key issues. In recent weeks, some progress had been noted with movements both in the European Parliament and the EU Council (see EUROPE 12968/9).
The sticking points were the notification regime for requiring the sending of electronic evidence and the residence requirement for data subjects of electronic data.
According to the rapporteur, Birgit Sippel (S&D, Germany), the European Parliament has obtained that judicial authorities issuing a subpoena for e-evidence such as content and traffic data to the address of a service provider must notify the country where the provider is located. However, judicial authorities may waive this notification requirement if the suspect is resides in the same country as the authority and the crime was committed there. This exception, known as the “residence test”, was defended by the EU Council.
While political agreement has been reached on these points between the negotiators, the technical details still need to be worked out in the texts. A technical trilogue is expected to be held shortly to do this. (Original version in French by Léa Marchal)