On 17 April 2018, the Commission presented two legislative proposals to enhance cross-border gathering of electronic evidence, one of them being a proposal for a Regulation on European Production and Preservation Orders for electronic evidence in criminal matters. It is intended to allow competent authorities from one Member State to request directly from a service provider established or represented in another Member State access to or preservation of electronic data needed for investigation and prosecution of crimes covered by the Regulation. The proposal covered service providers operating in one or more Member States, wherever their headquarters are located or information stored. It allowed the service provider to request a review of the received order, on defined grounds, such as technical issues or in case of orders being manifestly abusive or violating the Charter of fundamental rights. Both legislative proposals were intended to bring clarity and legal certainty, and 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, welcoming the proposals and calling to respect fundamental rights. The EESC supported the development of Europe-wide uniform standards regarding the conditions for access to data and advocated extending scrutiny by a judge to the gathering of all personal data.

In its opinion from September 2018, the European Data Protection Board (EDPB) stressed 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.

The European Data Protection Supervisor (EDPS) issued its opinion on 6 November 2019, underlining 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 to effectively fight terrorism and serious crime.

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, i.e. 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. The Council reached a general approach on the proposal for the Regulation on 7 December 2018. Council position foresees the creation of a notification system for content data.

On 6 June 2019, the Justice and Home Affairs Council published its full set of recommendations for modifying the Commission proposal, including the changes to the Regulation itself and to the supplementary annexes. The changes to the annexes include additional information requirements for Orders, such as unique identifiers like ID names or account names for the person sought, and more details on requested evidence.

Within the Parliament, the proposal for the Regulation 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. 

Under the new term, on 4 September 2019, Birgit Sippel was reappointed as rapporteur, with the proposal for the regulation remaining with the LIBE committee. In her draft report presented on 11 November 2019, the rapporteur proposed multiple changes to the Regulation, including: a mandatory notification to the judicial authorities of the enforcing country, as well as of the country of residence of the person concerned; data definitions in line with existing EU legislation; a list of possible grounds of refusal; strengthened rights to effective remedies and to a fair trial; response time in urgent cases extended from 6 to 24 hours.

LIBE Committee adopted its report on 7 December 2020, together with the decision to open interinstitutional negotiations, confirmed by plenary on 16 December. In its final position, the MEPs agreed on: adding mandatory notification (only to the enforcing State and with no suspensive effect); modifying data categories; introducing grounds for non-recognition or non-execution of orders; written consent requirement when the issuing State is subject to Article 7 procedure on the Rule of law; reinforcing provisions on effective remedies; extending the deadline for emergency cases to 16 hours; providing for a common EU exchange system with secure channels for the transmission of orders and of requested data.

On 29 November, after eight political trilogues, the co-legislators reached a political agreement on the most controversial elements of the proposals. The mandatory deadline of 10 days for responding to a production order was retained with a  possibility to reduce it to eight hours in duly established emergency cases. A notification system was to be created and the enforcing state would have 10 days or, in emergency situations, 96 hours, to raise the grounds for refusal. In such case, the service provider would have to stop the execution of the order and the issuing authority would be obliged to withdraw it.

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. Regulation (EU) 2023/1543 was published in the Official Journal on 28 July 2023.

References

• European Parliament and the Council of the EU, Regulation (EU) 2023/1543 of 12 July 2023 on European Production Orders and European Preservation Orders for electronic evidence in criminal proceedings and for the execution of custodial sentences following criminal proceedings
• EP Legislative Observatory, Procedure file on European production and preservation orders for electronic evidence in criminal matters, 2018/0108(COD)
• European Parliament, Legislative resolution of 13 June 2023 on the proposal for a regulation of the European Parliament and of the Council on European Production and Preservation Orders for electronic evidence in criminal matters
• 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
• Council of the EU, Justice and Home Affairs Council - Main results, 11-12 October 2018
• European Commission, Proposal for a Regulation on European Production and Preservation Orders for electronic evidence in criminal matters, COM/2018/225 final
• European Commission, Fourteenth progress report towards an effective and genuine Security Union, 17 April 2018
• 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 2018
• 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.e