On 21 September 2018, a study, commissioned by the European Parliament’s Policy Department for Citizens’ Rights and Constitutional Affairs at the request of the LIBE Committee, analyzing the added value and the shortcomings of the Commission’s proposals on cross-border access to electronic evidence, was published. The analysis puts a special focus on the proposals’ implications for territoriality and state sovereignty and fundamental rights of service providers and users.

The aim of this study is to assess whether the new rules proposed by the Commission provide an adequate and feasible framework for cross-border access to provider data. To that end, the study shall analyse the added value and shortcomings of the Commission’s proposal and assess the legal implications of the transnational disclosure of provider data, with a special focus on the disparities of national legal systems and recent developments concerning access to evidence stored in other jurisdictions, the legal challenges as regards territorial sovereignty and fundamental rights protection as well as the possibilities offered by Mutual Legal Assistance agreements and mutual recognition instruments.

The international framework of cross-border access to provider data mainly relies on MLA proceedings. In the EU, the European Investigation Order has significantly facilitated cross-border cooperation by streamlining the procedure and reducing cooperation obstacles, but still requires an intervention of the MS where the investigative measure shall be executed. In contrast, the Commission’s proposal will create new instruments for direct and mandatory cross-border cooperation, namely the European Production Order (EPOC) and the European Preservation Order (EPOC-PR). The orders are addressed to the legal representative to be designated by any service provider offering its services in the Union. The role of the formerly executing MS is limited to the enforcement of the order if the addressee does not comply with its obligations.

The added value of the new cooperation regime lies in providing quick and effective cross-border access to provider data. On the other hand, the Commission’s proposal suffers from major shortcomings:

The Commission’s proposal extends enforcement jurisdiction to service providers established and data stored in non-Member States and thereby compromises the functioning of international cooperation with third states and gives rise to legal uncertainty for both service providers and users.

Direct cooperation will affect the territorial sovereignty of the MS in which the service provider shall execute the EPOC or the EPOC-PR and will, thereby, prevent that MS from taking responsibility for an effective protection of fundamental rights within its territory. Instead, the protective function is shifted to the service provider and/or the competent authority of the issuing MS neither of which is in position to ensure adequate protection.

The proposed cooperation mechanism deprives the individual of the protection provided by the traditional framework of international cooperation by abolishing traditional cooperation obstacles (for instance the double criminality requirement). Most of all, the proposal establishes an obligation to produce content data and transactional data even if the threshold set out by the law of the enforcing MS is not met (serious offence, catalogue offence).

As a consequence of the re-allocation of protective functions among the issuing and the enforcing MS, the individual whose data has been transmitted has no right to challenge the disclosure before a court of the enforcing MS. The service provider is provided with judicial remedies in the enforcing MS (enforcement proceedings) and in the issuing MS (review procedure in case of conflicting obligations), but may not challenge the legality of the order under the law of the issuing MS.

The Commission’s proposal will not fully overcome the fragmentation and divergence of the MSs’ laws on the preservation and production of electronic evidence. Production and preservation orders to domestic service providers will remain subject to national law and the proposed cooperation regime still significantly refers to the national laws of the issuing and enforcing MS.

The full report and the important recommendations can be found here.

Source: European Parliament Think Tank