New E-Evidence Legislation: Trilogue Started – Critics on EP Stance
After the European Parliament adopted its position on the e-evidence package in December 2020 (→ see seperate news item), trilogue negotiations between the EP, the Council and the Commission started on 10 February 2021. The Council had already presented its general approach in 2018 (→ eucrim 4/2018, 206). For the original Commission proposal → eucrim 1/2018, 35-36. The new legislation aims to simplify law enforcement authorities’ ability to access data held by private digital service providers in another national jurisdiction. The proposal is highly contentious; the EP included several amendments in its position. In particular, the lack of judicial control in the executing state as well as unresolved questions regarding notification obligations were criticised. For the discussion and critics put forward by NGOs navigate to previous eucrim issues under “Law Enforcement Cooperation.”
The Council expects difficult negotiations. In preparatory documents of 25 January 2021, the Council Presidency juxtaposes the initial Commission proposal and the respective positions of the EP and the Council, both as regards the proposed Regulation on European Production and Preservation Orders for electronic evidence in criminal matters and the Directive laying down harmonised rules on the appointment of legal representatives for the purposes of e-evidence gathering. Regarding the latter instrument, it should be noted that the EP wishes to merge the provisions of the Directive into the Regulation.
In Mid-January 2021, the European Judicial Network e-Evidence Working Group (WG) criticised the EP’s position. After having assessed the proposed amendments made by the EP, the WG believes that the drafted provisions are inconsistent, confusing, and unclear. The WG also commented on eight points that may affect judicial cooperation regarding the obtainment of e-evidence if the Regulation were adopted under the current version. In conclusion, the EJN WG believes that the EP’s version is no advancement compared to other existing judicial cooperation instruments.
On the opposite, civil stakeholder organisation EDRI blamed the EP for having made too far-reaching compromises that water down adequate safeguards, which had been included in the original drafts of the EP rapporteur. In particular, the compromise will put the rights of journalists, lawyers, doctors, social workers and individuals in general at risk.