CCBE: Legality of E-Evidence Proposal Even More Questionable After CJEU’s Judgements on “Judicial Authorities”
In a statement of 29 May 2019, the Council of Bars and Law Societies of Europe (CCBE) looks into the impact of the CJEU’s judgements of 27 May 2019 on the concept of judicial authority (case C-509/18 (PF) and Joined Cases C-508/18 (O.G.) & C-82/19 PPU (P.I.); see eucrim 1/2019, pp. 31-34) on the debated proposal for a Regulation on European Production and Preservation Orders for e-evidence in criminal matters. The CCBE argues that the exclusion of public prosecution offices not possessing the necessary independence (such as the German prosecution services) to be a judicial authority in the sense of the Framework Decision on the European Arrest Warrant underpins the arguments against the legality of the e-evidence proposal.
As outlined in the CCBE position paper of October 2018, it is highly questionable whether the proposed e-evidence Regulation can be based on Art. 82(1) TFEU. Art. 82 TFEU applies to cooperation between judicial authorities only. Now, however, nobody can be sure that a prosecutor who issues e-evidence production orders is considered a “judicial authority.” For the ongoing debate on the e-evidence proposal, see the previous eucrim issues 1/2019 and 4/2018.