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EU: E-evidence: Council note on state of play and possible ways forward

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20 September 2021

A Council Presidency note on the proposed e-evidence Regulation, which would ease the cross-border acquisition of digital data by law enforcement authorities, sets out a proposed way forward in negotiations with the European Parliament - including an admission that the Council is seeking to ensure that 'Article 7' proceedings on the rule of law in EU member states "will not affect the way the data is obtained from service providers."

See: NOTE from: Presidency to: Delegations: Draft Regulation on European Production and Preservation Orders for electronic evidence in criminal matters (e-evidence) - State of play and possible ways forward (Council doc. 11681/21, LIMITE, 16 September 2021, pdf, emphasis in original):

"Since the latest COPEN meeting on 1 September, the Presidency has continued its efforts to identify possible compromises with the European Parliament with regard to the notification block of rules in the draft Regulation.

In detail, the Presidency has engaged in informal and close consultations with the EP negotiation team, aiming at exploring the respective positions in detail and possibly identifying some common ground... The assessment of the Presidency is that such a compromise will need to contain the following elements:

1. The legislators have reached a preliminary understanding that there will be no notification obligation for preservation orders, and that notifications will in general not have any suspensive effect.

2. The parties also seem close to an understanding that the notification obligation will encompass content data and “real” traffic data (that is not other identification data).

3. The so-called residence criterion, which would limit the notification obligation by excluding domestic cases from the regime, remains a contentious point... Some preliminary concrete ideas in this sense have been mentioned, for example:

• Article 5(6) and 5(6a) should be maintained as in the GA
• An efficient digital communication system (exchange system) will be used for the transmission of the Certificates to the service provider/legal represenentative as well as for notifications, which would permit an automatisation of large parts of the administration
• Notifications of subscriber and other identification data would only be done once a year, in the form of compiled information, without any personal data being shared (see below)
• When certain grounds for refusal could be raised by the notified authority, there would be no formal requirement for the issuing authority to check the same circumstances regarding the law of the enforcing/executing state as those covered by the grounds for refusal, before issuing the order.

4. As regards subscriber and identification data, the Presidency has requested that the notification obligation requested by the EP would be replaced by an obligation to transfer certain data to the enforcing authorities once a year through the envisaged digital exchange system. Such a mechanism would allow the authorities in the enforcing state to follow developments and examine any possible malfunctions. The EP remains cautious...

5. As regards ex-post safeguards, the EP has requested a stronger regime than provided for in the general approach as a matter of priority, especially considering that notifications would a priori not have any suspensive effect. The Presidency has declared itself ready to analyse this in the light of a global compromise, but a detailed discussion with the EP counterparts has not yet started. In particular the following seems to be important for the EP:

• The person directly concerned by an order should in principle be informed without undue delay about the order, and that to withhold this information should only be possible on specific and duly motivated request from the authorities.
• The person whose data is sought by an order must have access to effective remedies in both the issuing and the enforcing state.
• When the data is gathered in breach of the Regulation or a ground for refusal is raised, this data shall not be used in the proceedings and shall be deleted.

6. Further, in return for the provisional agreement on the introduction of an optional list of grounds of non-recognition (new Article 10a), the Presidency has requested that Articles 9(2a)-(2c) in the EP position, which are related to the procedures under Article 7(1) and 7(2) TEU, will not be included in the Regulation and that such procedures will not affect the way the data is obtained from service providers.

7. Both legislators consider that the provision with the list of grounds of non-recognition must most probably be included in the compromise package described in this note. The details of such a compromise remain to be disscussed. The Presidency will thereby consider how the list could be based on existing instruments as well as the case law of the Court of Justice.

8. As regards service providers, the Presidency has requested that the Regulation will not include any rules that give service providers the right to conduct necessity/proportionality tests or similar. The EP seems ready to agree to this in principle."

The EP's negotiating position (as agreed in committee) can be found here.