On 17 April 2018, following a two-year-long preparation process, the European Commission presented two legislative proposals to enhance cross-border gathering of electronic evidence: a Regulation on European Production and Preservation Orders for electronic evidence in criminal matters and a Directive on the appointment of legal representatives for the purpose of gathering evidence in criminal proceedings. As far as the Directive is concerned, it would require service providers to designate at least one legal representative in the European Union. The proposal covers service providers operating in one or more Member States, wherever their headquarters are located or information stored. Both legislative proposals are intended to bring clarity and legal certainty, and they should considerably speed up the process of obtaining e-evidence, with an obligation for service providers to respond within 10 days and up to 6 hours in cases of emergency (compared to an average of 10 months within the Mutual Legal Assistance procedures).

The European Economic and Social Committee (EESC) adopted its opinion on 12 July 2018. The EESC welcomed the proposals and called for the respect of fundamental rights. It welcomed the mandatory designation by service providers of a legal representative in the Union.

In September 2018, the European Data Protection Board (EDPB) adopted its opinion stressing that the proposed new rules on electronic evidence should sufficiently safeguard the data protection rights of individuals and should be more consistent with EU data protection law.

In its opinion on the two e-evidence proposals from 6 November 2019, the European Data Protection Supervisor (EDPS) underlined the need to put in place all necessary safeguards, including greater involvement of the judicial authorities in the enforcing Member State, as well as to take into account the CJEU case-law.

The European Council, in its conclusions of 18 October 2018, underlined the importance of swift and efficient cross-border access to e-evidence in order to effectively fight terrorism and other serious and organised crime, and called for an agreement on the e-evidence proposals before the end of the legislature.

In the Council, debates focused on the scope of the future framework and its possible extension to include direct access to evidence and real-time interception, as well as on the idea to introduce a notification procedure, modifying the Commission’s approach of directly addressing orders to service providers. Moreover, in the light of international developments, namely the adoption of the Cloud Act by United States, Ministers agreed on the need to adopt a common EU approach for concluding an executive agreement with the US. While the Council reached a general approach on the regulation on production and preservation orders on 7 December 2018, work has continued on the directive on the appointment of legal representatives. The Council finally agreed its position on the directive on 8 March 2019. It includes some changes to the Commission initial proposal, such as provisions on clearer joint responsibility of service providers and legal representatives, arrangements to limit the burden for SMEs, including the possibility to appoint the same legal representative by several service providers, and a transposition deadline of 18 months.

Within the European Parliament, the proposal for the Directive has been assigned to the Civil Liberties, Justice and Home Affairs Committee (LIBE), rapporteur: Birgit Sippel, S&D, Germany. The Internal Market and Consumer Protection Committee (IMCO), asked for an opinion, decided not to give one. Between December 2018 and April 2019, exchanges of views took place during LIBE meetings on the basis of working documents presented by the rapporteur and the co-rapporteurs. No Parliament position has been adopted during the 2014-2019 term.

In October 2019, the EP Conference of Presidents adopted a decision on unfinished business (Rule 240) and confirmed that work should resume on both e-evidence proposals. Birgit Sippel was reappointed as rapporteur on 4 September 2019, with the proposal for the directive remaining with the LIBE committee. The rapporteur presented her draft report at the LIBE meeting of 11 November 2019. As far as the Directive is concerned, she recommended to reject the Commission proposal and to integrate its content into the proposed Regulation. In this way, only those Member States participating in the Regulation would be bound by the obligation regarding the appointment of legal representatives (and not all EU Member States as it would be the case under the Commission proposal).

The LIBE Committee adopted its report on 7 December 2020, together with the decision to enter into interinstitutional negotiations, confirmed by plenary on 16 December 2020. The LIBE Committee confirmed the initial rapporteur's views and recommended to reject the directive, stating that 'the proposed Directive overreaches its goal and raises serious issues with its legal basis, namely the Articles 53 and 62 TFEU. Consequently, only those Member States participating in the proposed Regulation should be bound by the obligation as regards to the appointment of legal representatives'. The Parliament thus integrated the relevant content of the proposed Directive into the proposed Regulation.

Interinstitutional negotiations intensified under the French and Czech presidencies. On 29 November, after eight political trilogues, the co-legislators reached a political agreement on the most controversial elements of the two proposals, including the adoption of the directive as a separate instrument, based on Articles 53 and 62 TFEU. On 25 January 2023, the Council confirmed the agreement with the Parliament. On 31 January 2023, the agreed text was approved in committee and on 13 June 2023 it was adopted in plenary. The Directive (EU) 2023/1544 was published in the Official Journal on 28 July 2023.

References

• European Parliament and the Council of the EU, Directive (EU) 2023/1544 of 12 July 2023 laying down harmonised rules on the designation of designated establishments and the appointment of legal representatives for the purpose of gathering electronic evidence in criminal proceedings
• EP Legislative Observatory, Appointment of legal representatives for the purpose of gathering evidence in criminal proceedings, 2018/0107(COD)
• European Parliament, Legislative resolution of 13 June 2023 on the proposal for a directive of the European Parliament and of the Council laying down harmonised rules on the appointment of legal representatives for the purpose of gathering evidence in criminal proceedings
• Council of the EU, Electronic evidence: Council confirms agreement with the European Parliament on new rules to improve cross-border access to e-evidence, press release, 25 January 2023 
• European Council conclusions, 18 October 2018
• European Commission, E-evidence - cross-border access to electronic evidence, 17 April 2018
• European Commission, Fourteenth progress report towards an effective and genuine Security Union, 17 April 2018
• Article 29 Working Party statement, Data protection and privacy aspects of cross-border access to electronic evidence, 29 November 2017
• EESC opinion, Evidence in criminal proceedings, 11 July 2018
• European Data Protection Board, Opinion of the EDPB on Commission proposals of the EP and of the Council on European production and preservation orders for electronic evidence in criminal matters, 17 October 208
• EDPS, Opinion on Proposals regarding European Production and Preservation Orders for electronic evidence in criminal matters, 6 November 2019

Further reading:

• P. Bąkowski, Electronic evidence in criminal matters, EPRS, September 2023
• European Parliament, Policy Department C study, An assessment of the Commission’s proposals on electronic evidence, September 2018
• EPRS, European production and preservation orders and the appointment of legal representatives for gathering electronic evidence, Initial Appraisal of a European Commission Impact Assessment, July 2018

Author: Piotr Bąkowski, Members' Research Service, legislative-train@europarl.europa.eu