MEPs want legally sound solutions for obtaining e-evidence in cross border cases
- Conditions for issuing European Preservation and Production Orders clarified, taking into account differences between member states in criminal law
- A meaningful notification procedure for more sensitive categories of data, a fundamental rights exception, and specific provisions when the issuing country is subject to Article 7 TEU procedures
The EU must strike the balance between law enforcement needs and the protection of fundamental rights, according to the Civil Liberties Committee.
MEPs backed with amendments two legislative proposals to simplify the existing procedures for obtaining electronic evidence with cross border elements for law enforcement and judicial authorities in criminal procedures.
The European Production Order or Preservation Order (Orders) will be used by judges and prosecutors to obtain electronic information from service providers in cross-border criminal investigations when searching for subscriber data, IP addresses, traffic and content data.
Under the draft legislation, orders to produce subscriber data and IP addresses for the sole purpose of identifying the person could be issued for any criminal offence and should be addressed directly to the service provider and simultaneously to executing authority and executed within 10 days or in emergency cases within 16 hours.
But orders for access to traffic and content data should be subject to stricter requirements and only issued for criminal offences punishable in the issuing state by a prison sentence of at least 3 years. This stricter requirements would not apply for offences committed exclusively online, notably for cybercrime, terrorism related offences or child sexual abuse online.
Executing authorities will have 10 days to decide if they want to raise any objections to the orders received. If no objection is raised within the time limit, the order can be executed.
General reasons for non-execution
The executing state can invoke a list of non-recognition grounds and for example take into account specific rules on criminal liability in relation to journalist and freedom of expression in other media under the law of the executing state, or for example if there is incompatibility with fundamental rights obligations.
Issuing Member States subject to Article 7 TEU procedure
MEPs demand that if the issuing state of an order regarding traffic and content data is subject to an Article 7 TEU procedure, the service provider should transmit the requested data only after receiving written approval from the executing authority.
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After the vote Rapporteur Birgit Sippel (S&D, DE) said : "The Commission completely ignored that substantive differences in criminal law remain between member states as regards the question of what is a crime, which investigation techniques may be applied, which penalties may be imposed. This approach would endanger fundamental rights and shift state prerogatives and responsibilities to private entities. In future negotiations both the Council and the Commission will have to substantially move towards the Parliament's direction and accept that it is not only about speeding up the access to electronic information, but also to make sure that fundamental rights and the rule of law are fully protected."
Next steps
The Committee adopted its position with 35 votes in favour and 22 against, 7 abstentions. MEPs also backed, with 55 to 7, the decision to enter into interinstitutional talks and the composition of the negotiating team. The EP decided to merge the two proposals into one regulation for reasons of legal basis, legal clarity and coherence. As a consequence the proposed directive was rejected by the Committee with 54 votes in favour and 3 against, 7 abstentions.
Negotiations between the co-legislators can start once plenary endorses the EP’s mandate.
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Polona TEDESKO
Press Officer