Eighteen civil society organisations urged Member States to seriously reconsider its draft position on law enforcement access to “e-evidence” on the eve of the vote on the general approach in the Council. In a letter of 5 December 2018, the organisations point out that the draft presented by the Austrian Presidency fails to solve the fundamental concerns of the e-evidence proposal (for other critical reactions, see eucrim 2/2018, pp. 107-108, and 3/2018, pp. 162-163). In particular, the following issues have been raised:

• Considerable reduction in the possibility for enforcing authorities to refuse recognition and enforcement of an order on the basis of a violation of the Charter of Fundamental Rights;
• Erroneous assumption that non-content data is less sensitive than content data, contrary to CJEU and ECtHR case law;
• Contemplation of the possibility to issue orders without court validation, disregarding CJEU case law (e.g., in Tele 2 Sverige);
• Failure to provide legal certainty;
• Undermining of the role of executing states, thereby undermining judicial cooperation.

In sum, the concerns over fundamental rights already raised have grown even more with the new text.