The French Presidency of the EU Council had announced, last 28 June, a provisional agreement with the European Parliament on the key elements of the e-evidence package after several years of discussions (see EUROPE 12981/14). However, the Parliament and the EU Council still need to agree on several important points in the Regulation and the Directive that should facilitate access to electronic evidence in criminal investigations.
The rapporteur, Birgit Sippel (S&D, German), reminded the Czech Justice Minister, Pavel Blažek, of this during a hearing in the European Parliament’s Committee on Legal Affairs on Monday 5 September. Both MEPs and Member States want to conclude the dossier soon. The latter were to submit their comments to the Czech Presidency of the EU Council by 5 September. “I can’t give the European Parliament any more information than that at this stage”, said Pavel Blažek. He added: “By the end of October, we would like to organise a meeting with the European Parliament”.
The elements to be clarified concern the notification obligations for authorities requesting electronic evidence. The latter are obliged to notify the evidence injunction to the country where the service provider concerned is located, according to the agreement reached in June between the European Parliament and the French Presidency. An exception has been granted: the obligation is lifted when the individual resides in the same country as the service provider and has committed the crime there.
However, the negotiators did not agree on the definition of the residence criterion in this case. The Parliament wants that, for example, the individual to have resided in the country for at least 6 months and to be registered as a resident where the possibility exists. The EU Council would like to see more flexible criteria to easily show that the individual is living in the country and not have to notify the host state.
There was also no consensus on the rule to be followed in urgent cases. After notification of an order to provide evidence by a judicial authority, a period of 10 days is provided for where the order is suspended. However, the negotiators did not agree on emergency cases. According to one source, the European Parliament is calling for a continued suspension of the evidence injunction for 10 days, but Member States are against this waiting period, so that evidence can be collected quickly.
Another technical detail to be finalised is the implementation of the digital platform for communicating injunctions. Exchanges cannot take place through existing tools such as e-CODEX, which are not adapted to communicate with actors other than judicial authorities. The Commission wants to wait for the finalisation of the regulation by the negotiators before launching the work for this tool, which could take several months. A transitional solution must therefore be found by the European Parliament and the EU Council. (Original version in French by Léa Marchal)