The European Council has come to terms on its position on a package to improve the cross-border sharing of electronic evidence.
The package, designed to enable judicial orders to be issued to service providers in any Member State, will be applied in tandem with future EU legislation concerning production and preservation orders for electronic evidence. It lays out the role of the legal representatives who are to be appointed to receive and answer such orders, as well as the approved process for their appointment – before the implementation of legal representatives into EU regulations, service providers from outside the EU were not compelled by law to be physically present when providing services in Member States.
The package, as approved by the Council, contains the following main provisions:
- Legal representatives must be located either in the Member State where the service provider is based or in a Member State where it provides its services;
- Legal representatives and service providers are to be held “jointly and severally liable” for non-compliance;
- Sanctions must be “effective, proportionate and dissuasive”;
- Legal representatives may answer other evidence requests than those pertaining to electronic evidence, such as European investigation orders; and
- A full list of appointed legal representatives must be made publicly available to facilitate the work of EU law enforcement bodies.
Romanian Minister of Justice Tudorel Toader said: “This is an important step towards more effective and quicker access to evidence in criminal proceedings. Designation of legal representatives will constitute a key component in facilitating cooperation in gathering electronic evidence. Our aim is to make sure the new mechanism will work effectively, but at the same time do not represent too much of a burden, especially for SMEs [small and medium enterprises]. I regret this Parliament won’t be ready to enter into negotiations but hope the work can continue as soon as possible once the new Parliament is elected.”
The Council is expected to begin position negotiations with the European Parliament after the parliamentary elections in May.
