The “e-Evidence Regulation” is to regulate production and preservation orders for electronic evidence in criminal matters in the EU-wide cross-border exchange of data between providers and authorities. The eco – Association of the Internet Industry welcomes in principle the intention of the EU Parliament to speed up the European exchange of evidence, but expresses grave concern about the approach of the regulation: for the first time, the release of data is no longer to be dependent on whether the offence being prosecuted is liable to prosecution in the location where the data is requested.
As a result, companies based in Germany could be obliged to hand over data to investigating authorities in other EU Member States, even if the action subject to prosecution is not a criminal offence in Germany.
On the planned adoption of the e-Evidence Regulation in the European Parliament, eco Board Member Klaus Landefeld has the following to say:
“Instead of speeding up mutual legal assistance procedures in cross-border investigations and optimising cooperation between law enforcement and investigative authorities in the EU, the e-Evidence Regulation now allows authorities from other EU Member States to require the production and preservation of data directly from companies. The e-Evidence Regulation thus calls into question the principles of the rule of law.
“The handover of information and personal data of citizens to investigating authorities without prior proper judicial review in the country concerned is particularly problematic: providers of digital services cannot adequately assess the extent to which the rights of their users are protected or whether the usual notification obligations exist in this country. eco would have liked to see more stringency in terms of the rule of law and would have welcomed mandatory judicial reviews of the production or preservation of data in the EU Member State concerned. Instead, there is now the danger that enquiries by different European investigating authorities will not be able to adequately protect the fundamental rights of EU citizens.”
The eco – Association of the Internet Industry is also critical of the fact that third countries could now use the EU’s e-Evidence Regulation as a blueprint for their own regulations: “We fear that providers in EU Member States will see themselves increasingly exposed to production orders from third countries, which may be used to prosecute criminal offences from a completely different legal tradition. In addition, the regulation is problematic for German companies and all German citizens in general, as it creates conditions for data transfer that simply do not meet our very high constitutional standards and restrictions on data storage and transfer,” says Landefeld.
After almost five years in total, the consultations on the e-Evidence Regulation are expected to be concluded today. After long negotiations, the European Parliament representatives have acceded to the preferences of the Council’s negotiators.
In the run-up to the adoption, eco, together with other stakeholders, sent the following letter to the MEPs of the EU Parliament.
