52 Amendments of Abir AL-SAHLANI related to 2018/0108(COD)
Amendment 332 #
Proposal for a regulation
Recital 35
Recital 35
(35) Immunities and privileges, which may refer to categories of persons (such as diplomats, doctors, journalists, etc.) or specifically protected relationships (such as lawyer-client privilege), are referred to in other mutual recognition instruments such as the European Investigation Order. Their range and impact differ according to the applicable national law that should be taken into account at the time of issuing the Order, as the issuing authority may only issue the Order if a similar order would be available in a comparable domestic situation. In addition to this basic principle, immunities and privileges which protect access, transactional or content data in the Member State of the service provider should be taken into account as far as possible in the issuing State in the same way as if they were provided for under the national law of the issuing State. This is relevant in particular should the law of the Member State where the service provider or its legal representative is addressed provide for a higher protection than the law of the issuing Stateconfidentiality of sources) or rules relating to freedom of the press and freedom of expression in other media differ according to the applicable national law and should be taken into account at the time of issuing the Order. The provision also ensures respect for cases where the disclosure of the data may impact fundamental interests of that Member State such as national security and defence. As an additional safeguard, these aspects should be taken into account not only when the Order is issued, but also later, when assessing the relevance and admissibility of the data concerned at the relevant stage of the criminal proceedings, and if an enforcement procedure takes place, by the enforcing authority.
Amendment 383 #
Proposal for a regulation
Recital 55
Recital 55
(55) In addition, during the enforcement procedure and subsequent legal remedy, the addressee may oppose the enforcement of a European Production or Preservation Order on a number of limited grounds, including it not being issued or validated by a competent authority or it being apparent that it manifestly violates the Charter of Fundamental Rights of the European Union or is manifestly abusive. For example, an Order requesting the production of content data pertaining to an undefined class of people in a geographical area or with no link to concrete criminal proceedings would ignore in a manifest way the conditions for issuing a European Production Order.
Amendment 395 #
Proposal for a regulation
Article 1 – paragraph 1
Article 1 – paragraph 1
1. This Regulation lays down the rules under which an authority of a Member State may order a service provider offering services in the Union, to produce or preserve electronic evidence, regardless of the location of data, besides mutual legal assistance procedures or Directive 2014/41/EU of the European Parliament and of the Council of 3 April 2014 regarding the European Investigation Order in criminal matters. This Regulation is without prejudice to the powers of national authorities to compel service providers established or represented on their territory to comply with similar national measures for entirely domestic situations.
Amendment 398 #
Proposal for a regulation
Article 1 – paragraph 2
Article 1 – paragraph 2
2. This Regulation shall not have the effect of modifying the obligation to respect the fundamental rights and legal principles as enshrined in Article 6 of the TEU, including the rights of defence of persons subject to criminal proceedings, and any obligations incumbent on law enforcement or judicial authorities in this respect shall remain unaffected. Any rights of, or obligations incumbent on, service providers concerning the security, encryption, or general and indiscriminate retention of data shall also remain unaffected.
Amendment 460 #
Proposal for a regulation
Article 2 – paragraph 1 – point 15
Article 2 – paragraph 1 – point 15
(15) ‘emergency cases’ means situations where there is an imminent threat to life or physical integrity of a person or to a critical infrastructure as defined in Article 2(a) of Council Directive 2008/114/EC46 . _________________ 46Council Directive 2008/114/EC of 8 December 2008 on the identification and designation of European critical infrastructures and the assessment of the need to improve their protection (OJ L 34523.12.2008. p 75).
Amendment 461 #
Proposal for a regulation
Article 3 – paragraph 1 a (new)
Article 3 – paragraph 1 a (new)
1 a. This Regulation shall not apply to proceedings initiated by the issuing authority for the purpose of providing mutual legal assistance to another Member State or a third country.
Amendment 463 #
Proposal for a regulation
Article 3 – paragraph 2
Article 3 – paragraph 2
2. The European Production Orders and European Produceservation Orders may only be issued for criminal proceedings, both during the pre-trial and trial phase. The Orders may also be issued in proceedings relating to a criminal offence for which a legal person may be held liable or punished in the issuing State.
Amendment 465 #
Proposal for a regulation
Article 3 – paragraph 2 a (new)
Article 3 – paragraph 2 a (new)
2 a. Electronic evidence shall not be used for the purpose of proceedings other than those for which it was obtained in accordance with this Regulation.
Amendment 466 #
Proposal for a regulation
Article 3 – paragraph 3 a (new)
Article 3 – paragraph 3 a (new)
3 a. The Orders provided for by this Regulation shall not be issued to obtain data protected under the law of a Member State by immunities and privileges. Such protected data, which was unintentionally obtained through the Orders provided for by this Regulation, shall not be admissible as evidence.
Amendment 468 #
Proposal for a regulation
Article 3 – paragraph 3 b (new)
Article 3 – paragraph 3 b (new)
3 b. Authorities of a Member State which is subject to a procedure referred to in Article 7(1) or 7(2) of the Treaty on European Union may issue European Preservation Orders and may not issue European Production Orders.
Amendment 489 #
Proposal for a regulation
Article 5 – paragraph 2
Article 5 – paragraph 2
2. The European Production Order shall be necessary and proportionate for the purpose of the proceedings referred to in Article 3 (2)limited to data pertaining to individual persons with a direct link to the proceedings referred to in Article 3 (2), be necessary and proportionate for the purpose of those proceedings, and may only be issued if a similar measure would be available for the same criminal offence in a comparable domestic situation in the issuing State.
Amendment 490 #
Proposal for a regulation
Article 5 – paragraph 3
Article 5 – paragraph 3
3. European Production Orders to produce subscriber data or access data for the sole purpose of determining the identity of individual persons with a direct link to the proceedings referred to in Article 3 (2) may be issued for all criminal offences.
Amendment 499 #
Proposal for a regulation
Article 5 – paragraph 4 – introductory part
Article 5 – paragraph 4 – introductory part
4. European Production Orders to produce subscriber data, access data, transactional data or content data may only be issuedfor all other purposes may only be issued in emergency cases, or if (a) the individual person, whose data is being requested, is residing in the issuing State, and (b) the place where the crime was committed or where the effects of the offence to a relevant degree materialised is in the issuing State.
Amendment 500 #
Proposal for a regulation
Article 5 – paragraph 4 – point a
Article 5 – paragraph 4 – point a
Amendment 506 #
Proposal for a regulation
Article 5 – paragraph 4 – point b
Article 5 – paragraph 4 – point b
Amendment 508 #
Proposal for a regulation
Article 5 – paragraph 4 – point c
Article 5 – paragraph 4 – point c
Amendment 512 #
Proposal for a regulation
Article 5 – paragraph 5 – point c
Article 5 – paragraph 5 – point c
(c) the individually identifiable persons whose data is being requested, except where the sole purpose of the order is to identify a person;
Amendment 516 #
Proposal for a regulation
Article 5 – paragraph 5 – point e
Article 5 – paragraph 5 – point e
(e) if applicable, the time range requested to be produced, tailored as narrowly as possible;
Amendment 520 #
Proposal for a regulation
Article 5 – paragraph 5 – point i
Article 5 – paragraph 5 – point i
(i) the grounds for the necessity and proportionality of the measure, taking due account of the impact of the measure on the fundamental rights of the person whose data is sought.
Amendment 528 #
Proposal for a regulation
Article 6 – paragraph 2
Article 6 – paragraph 2
2. It mashall be limited to data pertaining to individual persons with a direct link to the proceedings referred to in Article 3 (2) and may only be issued where necessary and proportionate to prevent the removal, deletion or alteration of those data in view of a subsequent request for production of this data via mutual legal assistance, a European Investigation Order or a European Production Order. European Preservation Orders to preserve data may be issued for all criminal offences.
Amendment 530 #
Proposal for a regulation
Article 6 – paragraph 3 – point c
Article 6 – paragraph 3 – point c
(c) the individually identifiable persons whose data shall be preserved, except where the sole purpose of the order is to identify a person;
Amendment 533 #
Proposal for a regulation
Article 6 – paragraph 3 – point e
Article 6 – paragraph 3 – point e
(e) if applicable, the time range requested to be preserved, tailored as narrowly as possible;
Amendment 534 #
Proposal for a regulation
Article 6 – paragraph 3 – point g
Article 6 – paragraph 3 – point g
(g) the grounds for the necessity and proportionality of the measure, taking due account of the impact of the measure on the fundamental rights of the person whose data is sought.
Amendment 567 #
Proposal for a regulation
Article 8 – paragraph 2 – subparagraph 2
Article 8 – paragraph 2 – subparagraph 2
Amendment 581 #
Proposal for a regulation
Article 8 a (new)
Article 8 a (new)
Article 8 a Notification and Verification 1. In cases where the European Production Order concerns transactional data or content data, the issuing authority shall submit a copy of the EPOC to the enforcing authority at the same time the EPOC is submitted to the addressee in accordance with Article 7. 2. The enforcing authority may verify, on its own initiative or at the request of the addressee, whether the European Production Order meets the conditions laid down in Articles 3, 4 and 5. It may also consult the issuing authority on the matter and request further clarifications. After that consultation, the issuing authority may decide to withdraw or adapt the EPOC. In the event of withdrawal or adaptation, the issuing authority shall immediately inform the addressee. 3. Where the enforcing authority verifies the European Production Order and, after consulting the issuing authority, concludes that the European Production Order does not meet the conditions laid down in Articles 3, 4 and 5, it shall instruct the addressee not to execute the EPOC. The enforcing authority shall inform the issuing authority of its reasoned objection, including all relevant details, without undue delay. 4. The procedures laid down in paragraphs 1 and 2 shall not have suspensive effect on the obligations of the addressee under this Regulation.
Amendment 586 #
Proposal for a regulation
Article 9 – paragraph 1
Article 9 – paragraph 1
1. UIn cases where the European Production Order concerns subscriber data or access data, upon receipt of the EPOC, the addressee shall ensure that the requested data is transmitted directly to the issuing authority or the law enforcement authorities as indicated in the EPOC at the latest within 3 days upon receipt of the EPOC, unless the issuing authority indicates reasons for earlier disclosure. In cases where the European Production Order concerns transactional data or content data, upon receipt of the EPOC, the addressee shall ensure that the requested data is transmitted directly to the issuing authority or the law enforcement authorities as indicated in the EPOC at the latest within 10 days upon receipt of the EPOC, unless the issuing authority indicates reasons for earlier disclosure.
Amendment 608 #
Proposal for a regulation
Article 9 – paragraph 3
Article 9 – paragraph 3
3. If tThe addressee canshall not comply with its obligation becauseif the EPOC is incomplete, contains manifest errors or, does not contain sufficient information to execute the EPOC, the addressee shallor is not limited to individual persons. In those cases, the addressee shall notify the enforcing authority and inform the issuing authority referred to in the EPOC without undue delay and ask for clarification, using the Form set out in Annex III. It shall inform the issuing authority whether an identification and preservation was possible as set out in paragraph 6. The issuing authority shall react expeditiously and within 5 days at the latest. The deadlines set out in paragraphs 1 and 2 shall not apply until the clarification is provided.
Amendment 615 #
Proposal for a regulation
Article 9 – paragraph 5 – subparagraph 2
Article 9 – paragraph 5 – subparagraph 2
Amendment 622 #
Proposal for a regulation
Article 9 – paragraph 6
Article 9 – paragraph 6
6. The addressee shall preserve the data requested, if it does not produce it immediately, unless the information in the EPOC does not allow it to identify the data requested, in which case it shall seek clarification in accordance withDuring the procedures laid down in paragaraph 3. The preservation shall be upheld until the data is produced, whether it is on the basis of the clarified European Production Order and its Certificate or through other channels, such as mutual legal assistance. If the production of data and its preservation is no longer necessary, the issuing authority and where applicable pursuant to Article 14(8) the enforcing authority shall inform the addressee without undue delays 1 to 5, the service provider shall preserve the data requested, unless the request is not limited to individual persons.
Amendment 624 #
Proposal for a regulation
Article 9 – paragraph 6 a (new)
Article 9 – paragraph 6 a (new)
6 a. Without prejudice to paragraphs 1 to 6, where the service provider has substantial grounds to believe that an EPOC does not meet the conditions laid down in this Regulation, the service provider may request the enforcing authority to verify the EPOC pursuant to the procedures laid down in Article 8a (2).
Amendment 626 #
Proposal for a regulation
Article 10 – paragraph 1
Article 10 – paragraph 1
1. Upon receipt of the EPOC-PR, the addressee shall, without undue delay, preserve the data requested. The preservation shall cease after 60 days, unless. However, the preservation shall be continued for a maximum of 60 additional days, if the issuing authority confirms within the first 60 days that the subsequent request for production has been launched.
Amendment 643 #
Proposal for a regulation
Article 10 – paragraph 4
Article 10 – paragraph 4
4. If tThe addressee canshall not comply with its obligation becauseif the Certificate is incomplete, contains manifest errors or does not contain sufficient information to execute the EPOC-PR, the addressee shallor is not limited to individual persons. In those cases, the addressee shall notify the enforcing authority and inform the issuing authority set out in the EPOC-PR without undue delay and ask for clarification, using the Form set out in Annex III. The issuing authority shall react expeditiously and within 5 days at the latest. The addressee shall ensure that on its side the needed clarification can be received in order to fulfil its obligation set out in paragraph 1.
Amendment 669 #
Proposal for a regulation
Article 11 – paragraph 1
Article 11 – paragraph 1
1. Addressees and, if different, service providers shall take the necessary measures to ensure the confidentiality of the EPOC or the EPOC-PR and of the data produced or preserved and where requested by the issuing authority, shall refrain from informing the person whose data is being sought in order not to obstruct the relevant criminal proceedings. As long as necessary and proportionate to avoid obstructing the relevant criminal proceedings, and taking due account of the impact of the measure on the fundamental rights of the person whose data is sought, the issuing authority may request the addressee to refrain from informing the person whose data is being sought.
Amendment 682 #
Proposal for a regulation
Article 11 – paragraph 2
Article 11 – paragraph 2
2. Where the issuing authority does not requested the addressee to refrain from informing the person whose data is being sought, or where informing the person whose data is being sought would no longer obstruct the relevant criminal proceedings, the issuing authority shall inform the person whose data is being sought by the EPOC or EPOC-PR without undue delay about the data production. This information may be delayed as long as necessary and proportionate to avoid obstructing the relevant criminal proceedings or preservation.
Amendment 699 #
Proposal for a regulation
Article 12 – paragraph 1
Article 12 – paragraph 1
The service provider may claim reimbursement of their costs by the issuing State, if this is provided by the national law of the issuing State or the enforcing State for domestic orders in similar situations, in accordance with these national provisions. The service provider may choose whether it wants to be reimbursed pursuant to the national provisions of the issuing State or of the enforcing State. Member States shall inform the Commission about their rules for reimbursement and the Commission shall make them public.
Amendment 702 #
Proposal for a regulation
Article 13 – paragraph 1
Article 13 – paragraph 1
1.Service providers shall not be held liable for lawful compliance with an EPOC or EPOC-PR. 2. Without prejudice to national laws which provide for the imposition of criminal sanctions, Member States shall lay down the rules on pecuniary sanctions applicable to infringements of the obligations pursuant to Articles 9, 10 and 11 of this Regulation and shall take all necessary measures to ensure that they are implemented. The pecuniary sanctions provided for shall be effective, proportionate and dissuasive. Member States shall, without delay, notify the Commission of those rules and of those measures and shall notify it, without delay, of any subsequent amendment affecting them. 3. When determining in the individual case the appropriate pecuniary sanction, the competent authorities shall take into account all relevant circumstances, such as the nature, gravity and duration of the breach, whether it was committed intentionally or through negligence, whether the service provider was held responsible for similar previous breaches and the financial strength of the service provider held liable. Particular attention shall, in this respect, be given to micro enterprises that fail to comply with an Order in an emergency case due to lack of personal resources ouside normal buisness hours, if the data is transmitted without undue delay.
Amendment 709 #
Proposal for a regulation
Article 14 – paragraph 2
Article 14 – paragraph 2
2. Upon receipt, the enforcing authority shall without further formalities recognise a European Production Order or European Preservation Order transmitted in accordance with paragraph 1 and shall take the necessary measures for its enforcement, unless the enforcing authority considers that one of the grounds provided for in paragraphs 4 or 5 apply or that the data concerned is protected by an immunity or privilege under its national law or its disclosure may impact its fundamental interests such as national security and defencethe conditions laid down in Articles 3, 4 or 5 are not met. The enforcing authority shall take the decision to recognise the Order without undue delay and no later than 5 working days after the receipt of the Order.
Amendment 710 #
Proposal for a regulation
Article 14 – paragraph 3
Article 14 – paragraph 3
3. Where the enforcing authority recognises the Order, it shall formally require the addressee to comply with the relevant obligation, informing the addressee of the possibility to oppose the enforcement by invoking the grounds listed in paragraphs 4 or 5, as well as the applicable sanctions in case of non- compliance, and set a deadline for compliance or opposition.
Amendment 712 #
Proposal for a regulation
Article 14 – paragraph 4
Article 14 – paragraph 4
Amendment 715 #
Proposal for a regulation
Article 14 – paragraph 5
Article 14 – paragraph 5
Amendment 719 #
Proposal for a regulation
Article 15
Article 15
Amendment 733 #
Proposal for a regulation
Article 16
Article 16
Amendment 736 #
Proposal for a regulation
Article 17 – paragraph 1
Article 17 – paragraph 1
1. Suspects and accused persAnyonse whose data was obtainedsought via a European Production Order or a European Preservation Order shall have the right to effective remedies against the European Production Order during the criminal proceedings for which the Order was issued,issuing State and the enforcing State without prejudice to remedies available under Directive (EU) 2016/680 and Regulation (EU) 2016/679.
Amendment 739 #
Proposal for a regulation
Article 17 – paragraph 2
Article 17 – paragraph 2
Amendment 743 #
Proposal for a regulation
Article 17 – paragraph 3
Article 17 – paragraph 3
3. Such right to an effective remedy shall be exercised before a court in the issuing State and the enforcing State in accordance with its national law and shall include the possibility to challenge the legality of the measure, including its necessity and proportionality.
Amendment 746 #
Proposal for a regulation
Article 17 – paragraph 4
Article 17 – paragraph 4
4. Without prejudice to Article 11, the issuing authority and the enforcing authority shall take the appropriate measures to ensure that information is provided about the possibilities under national law for seeking remedies and ensure that they can be exercised effectively.
Amendment 747 #
Proposal for a regulation
Article 17 – paragraph 6
Article 17 – paragraph 6
6. Without prejudice to national procedural rules, Member States shall ensure that in criminal proceedings in the issuing State and the enforcing State the rights of the defence and the fairness of the proceedings are respected when assessing evidence obtained through the European Production Order.
Amendment 752 #
Proposal for a regulation
Article 18 – paragraph 1
Article 18 – paragraph 1
If transactional or content data obtained by the European Production Order is protected by immunities or privileges granted under the law of the Member State of the addressee, or it impacts fundamental interests of that Member Statmpacts fundamental interests of the Member State of the addressee such as national security and defence, the court in the issuing State shall ensure during the criminal proceedings for which the Order was issued that these grounds are taken into account in the same way as if they were provided for under their national law when assessing the relevance and admissibility of the evidence concerned. The court may consult the authorities of the relevant Member State, the European Judicial Network in criminal matters or Eurojust.
Amendment 769 #
Proposal for a regulation
Article 19 – paragraph 2 a (new)
Article 19 – paragraph 2 a (new)
2 a. The Commission shall, by 30 June of each year, publish a report containing the data referred to in paragraph 2.
Amendment 779 #
Proposal for a regulation
Article 23 – title
Article 23 – title
Relationship to European Investigation Orders and Mutual Legal Assistance Procedures
Amendment 781 #
Proposal for a regulation
Article 23 – paragraph 1
Article 23 – paragraph 1
Member States’ authorities may continue to issueuse also European Investigation Orders in accordance with Directive 2014/41/EU and mutual legal assitance procedures for the gathering of evidence that would also fall within the scope of this Regulation.
Amendment 785 #
Proposal for a regulation
Article 24 – paragraph 1
Article 24 – paragraph 1
By [53 years from the date of application of this Regulation] at the latest, the Commission shall carry out an evaluation of the Regulation and present a report to the European Parliament and to the Council on the functioning of this Regulation, which shall include an assessment of the need to enlarge or reduce its scope. If necessary, the report shall be accompanied by legislative proposals. The evaluation shall be conducted according to the Commission's better regulation guidelines. Member States shall provide the Commission with the information necessary for the preparation of that Report.