The EU is taking steps to improve cross-border access to e-evidence by creating a legal framework that will enable judicial orders to be addressed directly to service providers operating in the EU.
On 8 March 2019, The Council reached its position on the directive on the appointment of legal representatives for the gathering of evidence in criminal proceedings. This directive will be an essential tool for the application of the future regulation on European production and preservation orders for electronic evidence in criminal matters, on which the Council adopted its position last December, as it sets out the rules for the appointment of service providers' legal representatives, whose role is to receive and respond to such orders. The creation of legal representatives was necessary because of the lack of a general legal requirement for non-EU service providers to be physically present in the Union when providing services within the Union. Moreover, the legal representatives designated under this directive could be used for domestic procedures as well.
Main elements of the Council's position
The main elements of the Council's position include:
The criteria for defining the location of the legal representatives remain as in the Commission's proposal. Legal representatives shall be in one of the member states in which the service provider is established or offers services;
The Council further emphasised that legal representatives should have sufficient resources and powers to perform their tasks;
Service providers and legal representatives may be held jointly and severally liable for non-compliance;
Legal representatives may be used for gathering types of evidence other than e-evidence, and for receiving other requests related to law enforcement such as European investigation orders, without prejudice to the specific procedures provided for in other legal instruments for judicial cooperation in criminal matters;
Specific arrangements to limit the burden on SMEs have been added. Those include the possibility for SMEs to 'share' the same legal representative and that individual sanctions against a service provider should take into account its financial capacity;
On sanctions, the text remains as proposed by the Commission and provides that sanctions shall be effective, proportionate and dissuasive;
A full list of legal representatives shall be made publicly available to ensure easy access by law enforcement authorities, mainly but not only, via the European Judicial Network on criminal matters;
The Council has provided for a transposition deadline of 18 months in order to make sure that the legal representatives are up and running once the regulation on e-evidence enters into force 6 months later.
The Council is ready to start trilogue negotiations on the whole e-evidence package as soon as the Parliament has adopted its position. This is not expected to be before the forthcoming European elections.
This directive is part of the e-evidence package tabled by the Commission in April 2018. The objective of the package is to improve cross-border access to e-evidence by creating a legal framework for judicial orders addressed directly to service providers or their legal representative in another member state.
The directive complements the regulation on European production and preservation orders for electronic evidence in criminal matters on which the Council adopted its position in December 2018.
Source: Council of the European Union