The ECBA responded to the European Commission’s proposal for a Regulation on European Production Orders and European Preservation Orders for electronic evidence in February 2019. Please click here to read the response. 

Whilst the ECBA recognises the importance of electronic evidence in criminal investigations and prosecutions, and the need for expedition of cross-border access to stored electronic data by law enforcement authorities, the proposals have been introduced without consideration of whether existing cross-border cooperation measures are effective or could be improved to achieve the same outcome. The ECBA expresses grave reservations about the proposals, stating that they erode safeguards against abuse, thereby jeopardising the protection of legally privileged material, while allowing for disproportionate requests for electronic data. The ECBA is concerned about the inadequate protection for the ne bis in idem principle and the risk of conflict with GDPR. The ECBA calls for the implementation of specific safeguards which might form the basis for wider international co-operation in the sharing of electronic evidence.

The ECBA thanks rapporteurs Stefanie Schott and Julian Hayes for their hard work on the ECBA’s response.

The JHA Council held a first policy debate on the proposals on 4 June 2018. The Justice Ministers discussed the scope of the future framework and its possible extension to include direct access to evidence and real-time interception. Moreover, in the light of international developments, namely the adoption of the Cloud Act by United States, Ministers agreed on the need to adopt a common EU approach for concluding an executive agreement with the US. A second policy debate took place on 12 October 2018 and focused on the idea to introduce a notification procedure, modifying the Commission’s approach of directly addressing orders to service providers. The Council reached a General Approach on the proposals on 7 December 2018. Council position foresees the creation of a notification system for content data. The ECBA considers to comment the General Approach in the next future.

Within the European Parliament the COM proposal has been assigned to the Civil Liberties, Justice and Home Affairs Committee (LIBE),the rapporteur is Birgit Sippel. The LIBE Committee discussed the proposal on 11 June 2018 and at the Committee meeting of 06 September 2018 a joint debate on the two proposals took place following a presentation by the DG Justice (COM). On 10 December 2018 an exchange of views took place on the basis of a working document presented by the rapporteur Birgit Sippel. It is not unlikely that a final position of the EP cannot be reached until the elections in May. The ECBA is observing the process in Brussels.