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EU: Commission welcomes political agreement to strengthen cross-border access for criminal investigations

The European Commission issued, on 29 November 2022, a press release welcoming the provisional political agreement reached, on the same date, by the European Parliament and the Council of the European Union on the new rules for sharing e-evidence across the EU. In particular, the Commission explained that the political agreement will lead to the formal adoption of the Proposal for a Directive Laying Down Harmonised Rules on the Appointment of Legal Representatives for the Purpose of Gathering Evidence in Criminal Proceedings and the Proposal for a Regulation on European Production and Preservation Orders for Electronic Evidence in Criminal Matters.

Specifically, the Commission highlighted that the new rules will provide national authorities with a reliable channel to obtain e-evidence, while establishing strong safeguards to ensure a high level of protection of the rights of the persons affected. Notably, the Commission highlighted that, under the Draft Regulation:

  • European production orders would allow a judicial authority in one Member State to request electronic evidence through a decentralised IT system, directly from a service provider in another Member State, which will be obliged to respond within ten days, or eight hours in cases of emergency;
  • European preservation orders would prevent data from being deleted, allowing judicial authorities in one Member State to oblige a service provider in another Member State to preserve specific data, and to request it at a later time;
  • strong safeguards and remedies would be introduced, to guarantee the protection of fundamental rights and of personal information, such as imposing additional requirements to obtain certain categories of sensitive data; for instance, if a person does not reside in the issuing Member State or the offence has not been committed there, Member States would be required to notify the national authority where the service provider is located when they are seeking to obtain traffic and content data; and
  • legal certainty for businesses and service providers would be enhanced, by establishing a clear legal framework setting out rights and obligations of service providers and imposing a sanction of up to 2% of the total worldwide turnover for failure to comply with European preservation and production orders.

You can read the press release here.