Proposal for a Regulation of the European Parliament and of the Council on European Production and Preservation Orders for electronic evidence in criminal matters (e-evidence)
On the 17th of April 2018, the Commission issued the much-awaited Proposal for a Regulation on e-evidence. The proposed Regulation introduces binding European Production and Preservation Orders.
Both Orders need to be issued or validated by a judicial authority of a Member State, in the frame of a concrete criminal procedure after an individual evaluation of the proportionality and necessity in every single case.
When issuing a European Production Order, the issuing authority requires the service provider to produce content or non-content data, while the European Preservation Order has a more limited scope, as it aims to preserve the data in view of a subsequent request to produce this data. The European Preservation Order only allows preserving data that is already stored at the time of receipt of the Order, not the access to data at a future point in time after the receipt of the European Preservation Order. There are stricter requirements for the issuing of the European Production Order than for the European Preservation Order, which, unlike the former, can also be issued by a prosecutor. In particular, European Protection Orders to produce transactional data or content data may be issued only for some specific criminal offences (e.g. offences punishable in the issuing Member State by a custodial sentence of a maximum of at least 3 years).
The Regulation moves away from data location as a determining connecting factor, as data storage normally does not result in any control by the state on whose territory data is stored. Such storage is determined in most cases by the provider alone, on the basis of business considerations. The Regulation is also applicable if the service providers are not established or represented in the Union, but offer services in the Union.
The data ordered through a European Production or Preservation Order should be provided directly to the authorities without the involvement of authorities in the Member State where the service provider is established or represented. European Production Orders and European Preservation Orders should be addressed to a legal representative designated by the service provider for the purpose of gathering evidence in criminal proceedings in accordance with the Directive laying down harmonised rules on the appointment of legal representatives for the purpose of gathering evidence in criminal proceedings. The Proposal for such a Directive has been tabled by the Commission together with the Proposal for the Regulation on e-evidence.
If the service provider does not comply with the Order, the issuing authority transfers the full Order to the competent authority in the enforcing State, which shall enforce it in accordance with its national law using, if necessary, the pecuniary sanctions mentioned in Article 13 of the Proposal. The Proposal includes a right for the service provider to raise certain claims in the issuing Member State, for example if the Order has not been issued or validated by a judicial authority.
The Orders will co-exist with the current judicial cooperation instruments that are still relevant, such as the EIO Directive. The new instrument will not replace the EIO for obtaining electronic evidence but provides an additional tool for authorities. There may be situations, for example when several investigative measures need to be carried out in the executing Member State, where the EIO may be the preferred choice for public authorities.
The legal basis for the Regulation is Article 82(1) TFEU, which require the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, to adopt measures to, inter alia, lay down rules and procedures for ensuring recognition throughout the Union of all forms of judgments and judicial decisions.
Source: Explanatory Memorandum to the Commission's Proposal
Reference number: COM (2018) 225 final
Issue date: 17-04-18