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)

In 2015, in the ‘European Agenda for a Security Union’, the Commission highlighted the issue of access to electronic evidence and a year later, committed to propose solutions to address the problems of obtaining digital evidence in relation to criminal investigations. The Council, for its part, in its ‘Conclusions on Improving Criminal Justice in Cyberspace’ stressed the importance of electronic evidence in criminal proceedings in all types of crimes and called on the Commission to act.

What followed was extensive consultation with a wide range of stakeholders. In April 2018, two legislative proposals were published: a Regulation on European Production and Preservation Orders for electronic evidence in criminal matters and a Directive on the appointment of legal representatives for the purpose of gathering evidence in criminal proceedings. Their aim is to facilitate cross-border access to electronic evidence by creating a legal framework for judicial orders addressed directly to legal representatives of service providers - without the intervention of an authority of the Member State where their legal representative is located.

To that end, the two proposals aim to:

1. create a European Production Order, which will enable a judicial authority in one Member State to obtain electronic evidence directly from a service provider or its legal representative in another Member State, which will be obliged to respond in a designated timeframe;
2. create a European Preservation Order, which will enable a judicial authority in one Member State to request that a service provider or its legal representative in another Member State preserves specific data in view of a subsequent request to produce this data via mutual legal assistance, a European Investigation Order or a European Production Order.
3. make mandatory for service providers offering services in the Union to designate a legal representative in the Union to receive, comply with and enforce decisions aimed at gathering evidence by competent national authorities in criminal proceedings.

The first discussions of the proposed Regulation by the Coordinating Committee in the area of police and judicial cooperation in criminal matters (CATS) revealed several political issues. In June 2018, the Justice and Home Affairs Council discussed the scope of the proposed Regulation. For a number of delegations, its scope was limited, because it was not covering direct access to electronic evidence or real-time interception of data. The Council agreed on the need to consider expanding the scope of the regulation and called on the Commission to study the matter and report at its October meeting.

Following the information provided by the Commission and on the basis of the deliberation held in the October 2018 Council, the scope was kept as originally proposed by the Commission. At this meeting the Council also held a policy debateon the proposed involvement of another Member State in the procedure via a notification to the judicial authorities of that Member State. Due to the centrality of this issue, the Ministers were invited to discuss whether the approach taken in the proposal (that orders could be addressed directly to service providers without the involvement of any other Member State at the stage of the request) should be kept, or whether it should be modified by introducing a notification procedure. The Presidency noted as an outcome that Member States were willing to continue working towards a compromise on the inclusion of a notification mechanism with not suspensive effect that would be applicable only in limited cases for content data.

The European Economic and Social Committee adopted its opinion on 12 July 2018. In October 2018, the European Data Protection Board shared its opinion on the proposals, and made a long list of recommendations to the co-legislators.

In December 2018, the Council adopted its general approach on the proposal for a Regulation. On 22 February 2019, Eurojust made its contribution on the Annexes to the proposal for a Regulation on European Production and preservation Orders for electronic evidence in criminal matters. In June 2019, the Council supplemented its general approach on the proposal with the annexes to the Regulation.

Regarding the proposal for a Directive, the Council adopted, its general approach in March 2019.

In the European Parliament, the proposals have been assigned to the LIBE Committee. On 2 April 2019, the rapporteur, Birgit Sippel, presented to the LIBE Committee a series of working documents, addressing various issues linked to the proposal for a Regulation (safeguards and remedies, enforcement of European Preservation Order, relation with third country law, etc.).

Since the beginning of the new legislature, the European Parliament made progress on both proposals. The draft report on the Proposal for a Regulation was tabled before the LIBE Committee on 24 October 2019, and further amendments were submitted. The rapporteur reintroduced in its report an automatic notification of the executing State, which should be able to refuse the recognition or the enforcement of an order, on the basis of specific grounds for refusal provided for in the text. Similarly, the draft report on the proposal for a directive was tabled on 11 November 2019, and amendments submitted on 9 December 2019.

On 7 December 2020 the LIBE Committee adopted the decision to open interinstitutional negotiations. The LIBE Committee tabled its reports for plenary regarding the proposed regulation and the proposed directive on 11 December 2020 which was voted on 14 December 2020. Regarding the regulation, the Council issued a progress report on 29 November 2021 outlining the conclusions from the fourth political trilogue on this file (9 July 2021). Exchanges during the Slovenian Presidency have taken place at technical level and have focused on the notification regime. The main difference between the legislators as regards the notification obligations concerns the respective role of the states involved in the preservation or production order procedures. The Presidency noted that the Council has offered to make substantial concessions to the Parliament with a view to reaching an agreement. These concessions have so far not been considered sufficient by the Parliament.

On a related issue, after the Commission recommended on 5 February 2019 negotiating international rules for obtaining electronic evidence, the Council adopted on 6 June 2019 two decisions. The first one authorises the Commission to open negotiations with the United States of America with a view to concluding an agreement on cross-border access to electronic evidence for judicial cooperation in criminal matters. In that respect, the Commission started negotiations with the US on 25 September 2019. After four rounds of negotiations, it appears that progress on the internal EU rules is essential for bringing forward the EU-US negotiations. The second one authorised the Commission to participate on behalf of the EU in negotiations of a Second Additional Protocol to the Council of Europe Convention on Cybercrime on enhanced cooperation and the disclosure of electronic evidence. On 17 November 2021 the Committee of Ministers of the Council of Europe adopted the Second Additional Protocol, which should be opened for signature in May 2022.