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Commission starts negotiations with the USA on exchange of e-evidence

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08 October 2019

- talks start even though EU legislation not yet adopted - CJEU questions the legality of proposed EU measure - Commission says deal must include content and non-content data

On 25 September 2019 the Commission started negotiations with the USA on: E-evidence - Negotiations for EU-U.S. Agreement on cross-border access to evidence - report on state-of-play (RESTRICTED doc no: 12318-19, pdf):

"Delegations will find in Annexes to this Note the reports prepared by the European Commission on the state-of-play of the negotiations for an EU - U.S. agreement on cross-border access to e-evidence (Annex I).(...)

This first formal negotiation meeting was an opportunity for each side to set out its opening positions. The Commission made clear that its negotiating stance is defined in the Council mandate, which is public, taking into account the April 2018 e-evidence proposals and considering that they will still evolve during the legislative procedure." [emphasis added throughout]

This is an oblique reference to the fact that there is no agreement between the Council and the European Parliament - which has not yet adopted its negotiating position - on the new measure.

In addition CJEU ruling casts doubts on the legality of the proposed e-evidence regulation (Statewatch News):

According to the Court, “[t]hat independence requires that there are statutory rules and an institutional framework capable of guaranteeing that the issuing judicial authority is not exposed, when adopting a decision to issue such an arrest warrant, to any risk of being subject, inter alia, to an instruction in a specific case from the executive.”

This ruling is also of importance in the context of the proposal for a Regulation on European Production and Preservation Orders for e-evidence in criminal matters.

Negotiating points

In the current EU-USA discussions:

"The US stressed that their objective was to negotiate a framework agreement supplemented by bilateral agreements with individual EU Member States."

On the EU side:

"Discussions took place, amongst other things, on the types of electronic evidence and criminal proceedings that could be covered by the Agreement. The European Commission underlined that the agreement should include both content and non-content data."

And:

"The Commission explained the need to supplement the EU-US data protection Umbrella Agreement with additional safeguards to reflect the specificities of direct cooperation, as set out in the mandate, and stressed the need to align the scope of the future agreement with that of the Umbrella Agreement in terms of the US authorities covered."

The document also contains in Annex II: Report on the state-of-play of Commission's participation, on behalf of the Union, in the negotiations for the Second Additional Protocol to the Council of Europe Convention on Cybercrime.

Background

The first round of negotiations between the EU and USA took place in Brussels at the end of September: see the Agenda (12523/19, LIMITE, pdf) and: Report from the Commission on the opening of negotiations in view of an agreement on cross-border access to electronic evidence for judicial cooperation in criminal matters (12524/19, LIMITE, pdf)