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The name e-Evidence refers to two legislative proposals of the European Commission, brought forward on 17 April 2018. The main proposal is the Proposal for a Regulation on European Production and Preservation Orders for electronic evidence in criminal matters,[1] accompanied by the supporting Proposal for a Directive laying down harmonised rules on the appointment of legal representatives for the purpose of gathering evidence in criminal proceedings.[2]

The proposals are currently being negotiated between the legislators, the Parliament and the Council.[3]

Objective

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According to the European Commission, the proposal is to facilitate law enforcement access to electronic evidence for the purpose of criminal investigations. The Commission lists data "such as texts, e-mails or messaging apps"[4] as examples of electronic evidence.

Procedure

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The Commission (as the body holding the right of initiative) has made two legislative proposals. The European Parliament and the Council as legislators have taken positions in regard to the Commission proposal.

On 10 February 2021, the Council under the Portuguese Presidency, and the European Parliament started their legislative negotiations under participation of the Commission ("Trilogue"). It is not known yet when the negotiations are expected to conclude.

European Parliament

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In the European Parliament, the Committee on Civil Liberties, Justice and Home Affairs (LIBE) has received the lead competence working on the proposals. MEP Birgit Sippel was appointed rapporteur on 24 May 2018[5] and subsequently produced a number of working documents[6] with the shadow rapporteurs in the LIBE committee.

After the European elections in 2019, Birgit Sippel was reappointed rapporteur for the package on 4 September 2019. The committee reached its first reading position and decided to open interinstitutional negotiations on 7 December 2020, receiving approval in plenary on 14 December 2020.[7]

Council of the European Union

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The Bulgarian presidency of the Council produced its first note on the e-Evidence proposal on 25 May 2018[8] and reached a preliminary political agreement[9] on 30 November 2018[10] under the then acting Austrian Council presidency, after a group of eight Member States had expressed "great concern" in a letter to European Commissioner for Justice, Consumers and Gender Equality, Věra Jourová,[11][12] however failing to create a blocking minority, that could have stopped the adoption in the Council.

Next steps

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Once trilogue negotiations are concluded, both Parliament and Council have to conclude their first reading procedures, and the proposals can become law.

Reactions

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Think tank Centre for European Policy Studies and the Global Policy Institute at Queen Mary University in London set up a task force including "EU and national policymakers, providers of internet and telecommunications services, prosecutors, criminal lawyers, civil society actors and academic experts". Its report was published in October 2020 and concluded, among other things, "The e-evidence proposals should be withdrawn because they fail to meet normative standards and rule of law requirements."[13]

In an early statement of EDRi, the organization criticised the Commission to "[take] dangerous shortcuts to allow national authorities to obtain people's data directly from companies, basically turning them into judicial authorities."[14]

Public Consultation

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According to the Commission's assessment of the results of its public consultation,[15] accompanying the legislative proposal, "nearly half of the public survey respondents" perceived "the increasing use of information society services […] as a challenge to the work of law enforcement and judicial authorities". 82% of "respondents answering in their personal capacity selected 'very relevant' or 'relevant'" regarding concerns about possible negative impacts on rights.[16]

See also

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References

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  1. ^ "EUR-Lex – Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on European Production and Preservation Orders for electronic evidence in criminal matters – COM/2018/225 final - 2018/0108 (COD)". Archived from the original on 23 July 2020. Retrieved 4 March 2021.
  2. ^ "EUR-Lex – Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL laying down harmonised rules on the appointment of legal representatives for the purpose of gathering evidence in criminal proceedings – COM/2018/226 final - 2018/0107 (COD)". Archived from the original on 15 June 2019. Retrieved 4 March 2021.
  3. ^ "E-evidence Package: first Trilogue meeting". Portuguese Presidency of the Council of the European Union. 10 February 2021. Archived from the original on 7 March 2021. Retrieved 7 March 2021.
  4. ^ "E-evidence - cross-border access to electronic evidence". European Commission. European Commission. Archived from the original on 10 February 2021. Retrieved 4 March 2021.
  5. ^ "Procedure File: 2018/0108(COD)". Legislative Observatory of the European Parliament. Archived from the original on 26 April 2019. Retrieved 7 March 2021.
  6. ^ "Further Concerns of EP Against E-Evidence Legislative Proposal". eucrim. 19 April 2019. Archived from the original on 29 December 2020. Retrieved 7 March 2021.
  7. ^ "Procedure File: 2018/0108(COD)". Legislative Observatory of the European Parliament. Archived from the original on 9 February 2021.
  8. ^ ST 9117 2018 INIT - NOTE on the meeting of 29 May 2018, restricted, listed in,"Document register search". European Council – Council of the European Union. Archived from the original on 7 March 2021. Retrieved 7 March 2021.
  9. ^ "Regulation of the European Parliament and of the Council on European production and preservation orders for electronic evidence in criminal matters - general approach". Archived from the original on 22 July 2020. Retrieved 7 March 2021.
  10. ^ "Regulation on cross border access to e-evidence : Council agrees its position". European Council – Council of the European Union. 7 December 2018. Archived from the original on 8 January 2021. Retrieved 7 March 2021.
  11. ^ "Elektronische Beweismittel: EU-Staaten drohen Online-Diensten mit hohen Strafen". Netzpolitik.org. 2 December 2018. Archived from the original on 8 November 2020. Retrieved 7 March 2021.
  12. ^ "Letter to Commissioner Jourová" (PDF). Netzpolitik.org. Archived (PDF) from the original on 17 July 2019. Retrieved 7 March 2021.
  13. ^ Carrera, Sergio; Stefan, Marco; Mitsilegas, Valsamis (October 2020). "9". Cross-border data access in criminal proceedings and the future of digital justice (PDF). CEPS. p. 82. ISBN 978-94-6138-780-6. Archived from the original (PDF) on 29 December 2020. Retrieved 7 March 2021.
  14. ^ "EU "e-evidence" proposals turn service providers into judicial authorities". EDRi. 17 April 2018. Archived from the original on 9 November 2020. Retrieved 7 March 2021.
  15. ^ "EUR-Lex – COMMISSION STAFF WORKING DOCUMENT IMPACT ASSESSMENT Accompanying the document Proposal for a Regulation of the European Parliament and of the Council on European Production and Preservation Orders for electronic evidence in criminal matters and Proposal for a Directive of the European Parliament and of the Council laying down harmonised rules on the appointment of legal representatives for the purpose of gathering evidence in criminal proceedings – SWD/2018/118 final". Archived from the original on 19 September 2020. Retrieved 7 March 2021.
  16. ^ "COMMISSION STAFF WORKING DOCUMENT IMPACT ASSESSMENT Accompanying the document Proposal for a Regulation of the European Parliament and of the Council on European Production and Preservation Orders for electronic evidence in criminal matters and Proposal for a Directive of the European Parliament and of the Council laying down harmonised rules on the appointment of legal representatives for the purpose of gathering evidence in criminal proceedings". p. 122. Archived from the original on 4 June 2019. Retrieved 7 March 2021.
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Category:2018 in law Category:2018 in the European Union Category:Policies of the European Union Category:Criminal procedure

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