Activities of Sergey LAGODINSKY related to 2018/0108(COD)
Plenary speeches (1)
Electronic evidence in criminal proceedings: legal representatives directive - Electronic evidence regulation: European production and preservation orders for electronic evidence in criminal matters (debate)
Shadow reports (1)
REPORT on the proposal for a regulation of the European Parliament and of the Council on European Production and Preservation Orders for electronic evidence in criminal matters
Legal basis opinions (0)
Amendments (180)
Amendment 269 #
Proposal for a regulation
Recital 3
Recital 3
Amendment 270 #
Proposal for a regulation
Recital 4
Recital 4
Amendment 271 #
Proposal for a regulation
Recital 5
Recital 5
Amendment 272 #
Proposal for a regulation
Recital 6
Recital 6
Amendment 274 #
Proposal for a regulation
Recital 7
Recital 7
(7) Network-based services can be provided from anywhere and do not require a physical infrastructure, premises or staff in the relevant country. As a consequence, rRelevant evidence is often stored outside of the investigating State or by a service provider established outside of this State. Frequently, there is no other connection between the case under investigation in the State concerned and the State of the place of storage or of the main establishment of the service provider.
Amendment 277 #
Proposal for a regulation
Recital 8
Recital 8
(8) Due to this lack of connection, jJudicial cooperation requests are often addressed to states which are hosts to a large number of service providers, but which have no other relation to the case at hand. Furthermore, the number of requests has multiplied in view of increasingly used networked services that are borderless by nature. As a result, o. Obtaining electronic evidence using judicial cooperation channels often takes a long time — longer than subsequent leads may be available. Furthermore, there is no clearharmonised framework for cooperation with service providers, while certain third- country providers accept direct requests for non- content data as permitted by their applicable domestic law. As a consequence, all Member States rely on the cooperation channel withof service providers where available, us, applying different national tools, conditions and procedures. In addition, for content data, some Member States have taken unilateral action, while others continue to rely on judicial cooperation.
Amendment 281 #
Proposal for a regulation
Recital 9
Recital 9
(9) The fragmented legal framework creates challenges for law enforcement and judicial authorities, and for service providers seeking to comply with law enforcement requests. Therefore there is a need to put forward a European legal framework for electronic evidence to impose an obligation on service providers covered byclarify the rules of the cooperation across Member States in matters of electronic evidence, ensuring fundamental rights, the scoprule of the instrument to respond directly to authorities without the involvement of a judicial authority in the Member State of the service providerlaw, and upholding the responsibility of the public authorities rather than private actors to enforce the law.
Amendment 283 #
Proposal for a regulation
Recital 9 a (new)
Recital 9 a (new)
(9 a) The European Investigation Order (EIO), established by Directive 2014/41/EU of the European Parliament and of the Council9aa provides for the acquisition, access and production of evidence in one Member State for criminal investigations and proceedings in another Member State. The procedures and timelines foreseen in the EIO could not be appropriate for electronic evidence, which is more volatile and could more easily and quickly be deleted. This Regulation therefore provides for specific procedures that address the nature of electronic evidence. However, in order to avoid a long-term fragmentation of the Union framework for judicial cooperation in criminal matters, in the mid-term, the Commission should assess and ,if possible, propose legislation that would integrate this Regulation into the framework of the EIO. _________________ 9aaDirective 2014/41/EU of the European Parliament and of the Council of 3 April 2014 regarding the European Investigation Order in criminal matters, OJ L 130, 1.5.2014, p. 1
Amendment 285 #
Proposal for a regulation
Recital 10
Recital 10
(10) Orders under this Regulation should be addressed to legal representatives of service providers designated for that purpose I, if a service provider is not established in the Union has not designated a legal representative, the Orders can be addressed to any establishment of this service provider in the Union. This fall-back option serves to ensure the effectiveness of the system in case the service provider has not (yet) nominated a dedicated representative.
Amendment 286 #
Proposal for a regulation
Recital 11
Recital 11
(11) The mechanism of the European Production Order and the European Preservation Order for electronic evidence in criminal matters can only works on the basis of a high levelcondition of mutual trust between the Member States and of the rule of law, which is anare essential precondition for the proper funtectioning of this instrumentfundamental rights in the Union.
Amendment 288 #
Proposal for a regulation
Recital 11 a (new)
Recital 11 a (new)
(11 a) Where the Parliament, Commission, or Member States have activated the Article 7 mechanism, having determined a breach of Article 2, the Commission should issue a recommendation to Member States to instruct their executing authorities to review EPOC and EPOC-PR requests on the basis of this Regulation, originating in those States in breach, with a higher level of scrutiny and in light of the determination.
Amendment 290 #
Proposal for a regulation
Recital 12
Recital 12
(12) This Regulation respects fundamental rights and observesit should be applied in the light of the principles recognised in particular by the Charter of Fundamental Rights of the European Union. These include the right to liberty and security, the respect for private and family life, the protection of personal data, the freedom to conduct a business, the right to property, the right to an effective remedy and to a fair trial, the presumption of innocence and right of defence, the principles of the legality and proportionality, as well as the right not to be tried or punished twice in criminal proceedings for the same criminal offence. In case the issuing Member State has indications that parallel criminal proceedings may be ongoing in another Member State, it shallould consult the authorities of this Member State in accordance with Council Framework Decision 2009/948/JHA29 . _________________ 29Council Framework Decision 2009/948/JHA of 30 November 2009 on prevention and settlement of conflicts of exercise of jurisdiction in criminal proceedings (OJ L 328, 15.12.2009, p. 42).
Amendment 294 #
Proposal for a regulation
Recital 16
Recital 16
(16) The service providers most relevant for criminal proceedings are providers of electronic communications services and specific providers of information society services that facilitate interaction between users. Thus, both groups should be covered by this Regulation. Providers of electronic communications services are defined in the proposal for a Directive establishing the European Electronic Communications Code. They include inter-personal communications such as voice-over-IP, instant messaging and e-mail services. The categories of information society services included here are those for which the storage of data is a defining component of the service provided to the user, and refer in particular to social networks to the extent they do not qualify as electronic communications services, online marketplaces facilitating transactions between their users (such as consumers or businesses) and other hosting services, including where the service is provided via cloud computing. Information society services for which the storage of data is not a defining component of the service provided to the user, and for which it is only of an ancillary nature, such as legal, architectural, engineering and accounting services provided online at a distance, should be excluded from the scope of this Regulation, even where they may fall within the definition of information society services as per Directive (EU) 2015/1535.
Amendment 295 #
Proposal for a regulation
Recital 17
Recital 17
Amendment 298 #
Proposal for a regulation
Recital 18
Recital 18
(18) Providers of internet infrastructure services related to the assignment of names and numbers, such as domain name registrars and registries and privacy and proxy service providers, or regional internet registries for internet protocol (‘IP’) addresses, are of particular relevance when it comes to the identification of actors behind malicious or compromised web sites. They could hold data that is of particular relevance for criminal proceedings as it canould allow for the identification of an individual or entity behind a web site used in criminal activity, or the victim of criminal activity in the case of a compromised web site that has been hijacked by criminals.
Amendment 299 #
Proposal for a regulation
Recital 19
Recital 19
(19) This Regulation regulatesgoverns the gathering of stored data only, that is, the data held by a service provider at the time of receipt of a European Production or Preservation Order Certificate. It does not stipulate a general data retention obligation, nor does it authorise interception of data or obtaining to data stored at a future point in time from the receipt of a production or preservation order certificate. Data should be provided regardless of whether it is encrypted or not, as long as the provider can limit the data to those described in the EPOC.
Amendment 302 #
Proposal for a regulation
Recital 20
Recital 20
(20) The categories of data this Regulation covers include subscriber data, access data, transactional data (these three categories being referred to as ‘non- content data’)traffic data and content data. These categories are in line with Union and cointent data. This distinction, apart from the access data, exists in the legal laws of many Member States and also in the current US legal framework that allows service providers to share non-content data with foreign law enforcement authorities on a voluntary basisrnational law, notably the Council of Europe Budapest Convention on Cybercrime, and the [Regulation concerning the respect for private life and the protection of personal data in electronic communications and repealing Directive 2002/58/EC (Regulation on Privacy and Electronic Communications)], and the case law of the Court of Justice.
Amendment 304 #
Proposal for a regulation
Recital 21
Recital 21
(21) It is appropriate to single out access subscriber data as a specific data category used in this Regulation. Access data is pursued for the same objective as sSubscriber data, in other words to identify the underlying user, and the level of interference with fundamental rights is similar to that of subscriber data. Access data is typically recorded as part of a record of events (in other words a server log) to indicate the commencement and termination of a user access session to a service. It is often an individual IP address (static or dynamic) or other identifier that singles out the network interface used during the access session. If the user is unknown, it often needs to be obtained before subscriber data related to that identifier can be ordered from the service provids pursued to identify the underlying user.
Amendment 306 #
Proposal for a regulation
Recital 22
Recital 22
Amendment 310 #
Proposal for a regulation
Recital 23
Recital 23
(23) All data categories contain personal data, and are thus covered by the safeguards under the Union data protection acquis, but the intensity of the impact on fundamental rights varies, in particular between subscriber data and access data on the one hand and transactionalffic data and content data on the other hand. While subscriber data and access data are useful to obtain first leads in an investigation about the identity of a suspect, transactionalffic and content data are the most relevant as probative material. It is therefore essential that all these data categories are covered by the instrument. Because of the different degree of interference with fundamental rights, different conditions are imposed for obtaining subscriber and access data on the one hand, and transactionalffic and content data on the other.
Amendment 320 #
Proposal for a regulation
Recital 30
Recital 30
(30) When a European Production or Preservation Order is issued, there should always be a judicial authority involved either in the process of issuing or validating the Order. In view of the more sensitive character of transactionalffic and content data, the issuing or validation of European Production Orders for production of these categories requires review by a judge. As subscriber and access data are less sensitive, European Production Orders for their disclosure can in addition be issued or validated by competent prosecutors.
Amendment 322 #
Proposal for a regulation
Recital 31
Recital 31
(31) For the same reason, a distinction has to be made regarding the material scope of this Regulation: Orders to produce subscriber data and access data can be issued for any criminal offences punishable in the issuing and the executing state, whereas access to transactionalffic and content data should be subject to stricter requirements to reflect the more sensitive nature of such data. A threshold allows for a more proportionate approach, together with a number of other ex ante and ex post conditions and safeguards provided for in the proposalis Regulation to ensure respect for proportionality and the rights of the persons affected. At the same time, a threshold should not limit the effectiveness of the instrument and its use by practitioners. Allowing the issuing of Orders for investigations that carry at least a threfive-year maximum sentence limits the scope of the instrument to more serious crimes, without excessively affecting the possibilities of its use by practitioners. It excludes from the scope a significant number of crimes which are considered less serious by Member States, as expressed in a lower maximum penalty. It also has the advantage of being easily applicable in practice.
Amendment 326 #
Proposal for a regulation
Recital 32
Recital 32
(32) There are specific offences where evidence will typically be available exclusively in electronic form, which is particularly fleeting in nature. This is the case for cyber-related crimes, even those which might not be considered serious in and of themselves but which may cause extensive or considerable damage, in particular including cases of low individual impact but high volume and overall damage. For most cases where the offence has been committed by means of an information system, applying the same threshold as for other types of offences would predominantly lead to impunity. This justifies the application of the Regulation also for those offences where the penalty frame is less than 3 years of imprisonment. Additional terrorism related offences as described in the Directive 2017/541/EU do not require the minimum maximum threshold of 3 years.
Amendment 327 #
Proposal for a regulation
Recital 33
Recital 33
(33) Additionally, it is necessary to provide that the European Production Order may only be issued if a similar Order would be available for the same criminal offence in a comparable domestic situation in the issuing Statefor all criminal offences punishable in the issuing and the executing state, if it could have been ordered for the same criminal offence under the same conditions in a similar domestic case in the issuing State, and where there is reason to believe the criminal offence has been committed, and where it is grave enough to justify the Order.
Amendment 329 #
Proposal for a regulation
Recital 34
Recital 34
Amendment 333 #
Proposal for a regulation
Recital 35
Recital 35
(35) Immunities and privileges, which may refer to categories of persons (such as diplomats) 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 situationy should be taken into account at any time. In addition to this basic principle, immunities and privileges which protect access, transactionaltraffic 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. They should be taken into account in the executing State when taking the decision on the Order. 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 State. 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, tThese 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 334 #
Proposal for a regulation
Recital 36
Recital 36
(36) The European Preservation Order may be issued for any offencecriminal offence punishable in the issuing and the executing state, if it could have been ordered for the same criminal offence under the same conditions in a similar domestic case, and where there is reason to believe the criminal offence has been committed, and where it is grave enough to justify the Order. Its aim is to prevent the removal, deletion or alteration of relevant data in situations where it may take more time to obtain the production of this data, for example because judicial cooperation channels will be used.
Amendment 336 #
Proposal for a regulation
Recital 37
Recital 37
(37) European Production and Preservation Orders should be addressed to the legal representative designated by the service provider. In the absence of a designated legal representative, Orders can be addressed to an establishment of the service provider in the Union. This can be the case where there is no legal obligation for the service provider to nominate a legal representative. In case of non-compliance by the legal representative in emergency situationsmain establishment of the service provider in the Union among the Member States participating, or, twhe European Production or Preservation Order may also be addresre this is not the cased, to where the service provider alongside or instead of pursuing enforcement of the original Order according to Article 14. In case of non- compliance by the legal representative in non-emergency situations, but where there are clear risks of loss of data, a European Production or Preservation Order may also be addis established in the Union among the Member States participating, or, where this is not the case, to the legal repressed to any establishmentntative of the service provider in the Union. Because of these various possible scenarios, the general term ‘addressee’ is used in the provisions. Where an obligation, such as on confidentiality, applies not only to the addressee, but also to the service provider if it is not the addressee, this is specified in the respective provision. Simultaneously, it should be addressed directly to the executing authority.
Amendment 338 #
Proposal for a regulation
Recital 37 a (new)
Recital 37 a (new)
(37 a) Where the identity of the person suspected or accused is already known to the issuing authority, and its State of permanent residence is neither the issuing nor the executing state, the European Production Order should also be transmitted simultaneously to the affected authority of the State of permanent residence of that person.
Amendment 339 #
Proposal for a regulation
Recital 38
Recital 38
(38) The European Production and European Preservation Orders should be transmitted to the service provider through a European Production Order Certificate (EPOC) or a European Preservation Order Certificate (EPOC-PR), which should be translated. The Certificates should contain the same mandatory information as the Orders, except for the grounds for the necessity and proportionality of the measure or further details about the case to avoid jeopardising the investigations. But as they are part of the Order itself, they allow the suspect to challenge it later during the criminal proceedings. Where necessary, a Certificate needs to be translated into (one of) the official language(s) of the Member State of the addressee, or into another official language that the service provider has declared it will accept into (one of) the official language(s) of the Member State of the addressee.
Amendment 342 #
Proposal for a regulation
Recital 39
Recital 39
(39) The competent issuing authority should transmit the EPOC or the EPOC-PR directly to the addressee by any means capable ofin a secure and reliable way, allowing the addressee to producinge a written record under conditions that, ensuring secrecy, confidentiality, integrity, and allowing the service provider to establish the authenticity, such as by registered mail, secured email and platforms or other secured channels, including those made available by the service provider, in line with the rules protecting personal data of the Order and of the issuing authority, in line with the rules protecting personal data. In particular where electronic means are employed, open and commonly used, state-of-the-art electronic signature and encryption technology should be applied, allowing authorities and service providers to adopt a common, high level of security, while avoiding unnecessary burdens for service providers and benefiting from the sharing and re-use of established, tested products and processes.
Amendment 343 #
Proposal for a regulation
Recital 39 a (new)
Recital 39 a (new)
(39 a) Where service providers, Member States or Union bodies have established dedicated platforms or other secure channels for the handling of requests for data by law enforcement and judicial authorities, the issuing authority may also choose to transmit the Certificate via these channels.
Amendment 348 #
Proposal for a regulation
Recital 41
Recital 41
(41) In order to allow service providers to address formal problems, it is necessary to set out a procedure for the communication between the service provider and the issuing judicial authority in cases where the EPOC or EPOC-PR might be incomplete or contains manifest errors or not enough information to execute the Order. In case the service provider cannot comply with the EPOC or EPOC- PR within a timely manner, because of force majeure or of de facto impossibility, it should inform the authorities as soon as possible and comply with the order as soon as the reasons for the impossibility are no longer present. Such reasons could be technical, such as access controls or encryption, or operational, such as unavailability of staff during off-duty hours, or others, which reflect the operational limitations of small and medium enterprises and non-profit and community hosting service providers, also taking into account their size and the previous exposure to EPOCs and EPOC- PRs of a service provider. Moreover, should the service provider not provide the information in an exhaustive or timely manner for any other reason, for example because it thinks there is a conflict with an obligation under the law of a third country, or because it thinks the European Production Order has not been issued in accordance with the conditions set out by this Regulation, it should go back to the issuing authorities and provide the opportune justifications. The communication procedure thus should broadly allow for the correction or reconsideration of the EPOC by the issuing authority at an early stage. To guarantee the availabilty of the data, the service provider should preserve the data if they can identify the data sought.
Amendment 357 #
Proposal for a regulation
Recital 42 a (new)
Recital 42 a (new)
(42 a) The immunities and privileges of protected professions, such as journalists, medical professionals, legal professionals, and clergical or otherwise protected counsellors, should remain unaffected by this Regulation.
Amendment 365 #
Proposal for a regulation
Recital 46
Recital 46
(46) Notwithstanding their data protection obligations, sService providers should not be held liable in Member States for prejudice to their users or third parties exclusively resulting from good faith compliance with an EPOC or an EPOC- PRcompliance with this Regulation. Where a service provider acts with due diligence, in particular with regards to data protection obligations, manifest errors in an Order, illegal requests, or where an Order manifestly violates fundamental rights or is abusive, the service provider shall have the possibility to request clarification, or justification from the issuing authority through the executing authority. Where it acted faithfully, a service provider shall not be held liable for the consequences from any delays caused.
Amendment 366 #
Proposal for a regulation
Recital 47
Recital 47
(47) In addition to the individuals whose data is requested, the service providers and third countries may be affected by the investigative measure. To ensure comity with respect to the sovereign interests of third countries, to protect the individual concerned and to address conflicting obligations on service providers, this instrument provides a specific mechanism for judicial review where compliance with a European Production Order would prevent service providers fromthe executing authority, on its own initiative or on request of the service provider, or, where applicable, the affected authority considers that complyingiance with legal obligathe European Production Orderiving from a third State’s law would conflict with applicable laws of a third country prohibiting the disclosure of the data concerned.
Amendment 367 #
Proposal for a regulation
Recital 48
Recital 48
(48) To this end, whenever the addresseethe executing authority, on its own initiative or on request of the service provider, or, where applicable, the affected authority considers that the European Production Order or the European Preservation Order in the specific case would entail the violation of a legal obligation stemming from the law of a third country, the executing authority should inform the issuing authority by wwithin 10 days of a reasoned objection, using the forms provided. The issuing authority should then review the European Production Order in light of the reasoned objection, taking into account the same criteria that the competent court would have to follow. Where the authority decides to uphold the Order, the procedure should be referred to the competent court, as notified by the relevant Member State, whichthe receipt of the order. Such notice should include all relevant details on the law of the third country, its applicability in the case at hand and the nature of the conflicting obligation. The issuing authority should then review the European Production Order or European Preservation Order within 10 days of receiving the notice, taking into account criteria including the interests protected by the relevant law, the connection of the criminal case and the third country, the connection between the service provider and the third country, the interests of the investigating State in obtaining the electronic information and the possible consequences for the addressees of complying with the European Production Order or the European PreservationOrder. During this procedure, then reviews the Orderquested data should be preserved.
Amendment 369 #
Proposal for a regulation
Recital 48 a (new)
Recital 48 a (new)
(48 a) The issuing authority should withdraw, uphold, or adapt the Order where necessary, within 10 days after receiving the notice, to give effect to these criteria. In the event of withdrawal, the issuing authority should immediately inform the addressees of the withdrawal. Where the issuing authority decides to uphold the Order, it should inform the addressees of its decision. The executing authority, while duly taking into account the decision of the issuing authority, should take a final decision based on the criteria listed in this Regulation, within 10 days of receiving the decision of the issuing authority, and inform the issuing authority, the service provider, and, where applicable, the affected State of its final decision.
Amendment 371 #
Proposal for a regulation
Recital 51
Recital 51
Amendment 376 #
Proposal for a regulation
Recital 52
Recital 52
Amendment 377 #
Proposal for a regulation
Recital 53
Recital 53
Amendment 380 #
Proposal for a regulation
Recital 55
Recital 55
Amendment 385 #
Proposal for a regulation
Recital 56
Recital 56
Amendment 388 #
Proposal for a regulation
Recital 57
Recital 57
Amendment 389 #
Proposal for a regulation
Recital 58
Recital 58
Amendment 390 #
Proposal for a regulation
Recital 59
Recital 59
(59) The use of pretranslated and stardardised forms facilitates cooperation and the exchange of information between judicial authorities and service providers, allowing them to secure and transmit electronic evidence more quickly and effectively, while also fulfilling the necessary security requirements in a user- friendly manner. They could also reduce translation costs and contribute to a high quality standard. Response forms similarly should allow for a standardised exchange of information, in particular where service providers are unable to comply because the account does not exist or because no data is available. The forms should also facilitate the gathering of statistics.
Amendment 392 #
Proposal for a regulation
Recital 62
Recital 62
Amendment 393 #
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 and established or, if not established, represented in another Member State, to produce or preserve electronic evidence, regardless of the location of data. 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.
Amendment 399 #
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 the Charter of Fundamental Rights, and 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.
Amendment 400 #
Proposal for a regulation
Article 2 – paragraph 1 – point 1
Article 2 – paragraph 1 – point 1
(1) ‘European Production Order’ means a binding decision by an issuing, issued by a competent authority of a Member State for validation by the competent authority of another Member State compelling a service provider offering services in the Union and established or represented in another Member State, to produce electronic evidence;
Amendment 402 #
Proposal for a regulation
Article 2 – paragraph 1 – point 2
Article 2 – paragraph 1 – point 2
(2) ‘European Preservation Order' means a binding decision by an issuing, issued by a competent authority of a Member State for validation by the competent authority of another Member State compelling a service provider offering services in the Union and established or represented in another Member State, to preserve electronic evidence in view of a subsequent request for production;
Amendment 409 #
Proposal for a regulation
Article 2 – paragraph 1 – point 3 – point c
Article 2 – paragraph 1 – point 3 – point c
(c) internet domain name and IP numbering services such as IP address providers, domain name registries, domain name registrars, and related privacy and proxy services;
Amendment 420 #
Proposal for a regulation
Article 2 – paragraph 1 – point 5
Article 2 – paragraph 1 – point 5
(5) ‘main establishment’ means either the actual pursuit of an economic activity for an indefinite period through a stable infrastructure from where the business of providing services is carried out or a stable infrastructure from where the business is managed, as regards a service provider with establishments in more than one Member State, the place of its central administration in the Union, unless the decisions on the purposes and means of the provision of services are taken in another establishment of the service provider in the Union and the latter establishment has the power to have such decisions implemented, in which case the establishment having taken such decisions is to be considered to be the main establishment;
Amendment 423 #
Proposal for a regulation
Article 2 – paragraph 1 – point 6
Article 2 – paragraph 1 – point 6
(6) ‘electronic evidence’ means evidence stored in electronic form bysubscriber, traffic, or con behalf oftent data, legally stored by a service provider at the time of receipt of a pEuropean Production or pPreservation oOrder certificate, consisting in stored subscriber data, access data, transactional data and content data, that is requested for the purpose of serving as evidence during the investigation, prosecution, and court proceedings, of a criminal offence in a Member State in accordance with national law;
Amendment 427 #
Proposal for a regulation
Article 2 – paragraph 1 – point 7 – introductory part
Article 2 – paragraph 1 – point 7 – introductory part
(7) ‘subscriber data’ means any data pertaining to: the provided name, date of birth, postal or geographic address, billing and payment data, telephone, or email address identifying the subscriber or customer;
Amendment 429 #
Proposal for a regulation
Article 2 – paragraph 1 – point 7 – point a
Article 2 – paragraph 1 – point 7 – point a
Amendment 432 #
Proposal for a regulation
Article 2 – paragraph 1 – point 7 – point b
Article 2 – paragraph 1 – point 7 – point b
Amendment 447 #
Proposal for a regulation
Article 2 – paragraph 1 – point 10
Article 2 – paragraph 1 – point 10
(10) ‘content data’ means any stored data in a digital format such as text, voice, videos, images, and sound other than subscriber, access or transactional or traffic data;
Amendment 449 #
Proposal for a regulation
Article 2 – paragraph 1 – point 12 a (new)
Article 2 – paragraph 1 – point 12 a (new)
(12 a) 'issuing authority' means the competent authority in the issuing state;
Amendment 450 #
Proposal for a regulation
Article 2 – paragraph 1 – point 13
Article 2 – paragraph 1 – point 13
(13) ‘enforcxecuting State’ means the Member State in which the addressee of the European Production Order or the European Preservation Order resides or is established and to which the European Production Order and the European Production Order Certificate or the European Preservation Order and the European Preservation Order Certificate are transmitted for enforcement;:
Amendment 453 #
Proposal for a regulation
Article 2 – paragraph 1 – point 13 – point a (new)
Article 2 – paragraph 1 – point 13 – point a (new)
a) in which the electronic information is stored by the service provider; or, where there is no such storage in the Member States participating,
Amendment 454 #
Proposal for a regulation
Article 2 – paragraph 1 – point 13 – point b (new)
Article 2 – paragraph 1 – point 13 – point b (new)
b) in which the service provider has its main establishment in the Union among the Member States participating; or, where this is not the case,
Amendment 455 #
Proposal for a regulation
Article 2 – paragraph 1 – point 13 – point c (new)
Article 2 – paragraph 1 – point 13 – point c (new)
c) in which the service provider is established in the Union among the Member States participating; or, where this is not the case,
Amendment 456 #
Proposal for a regulation
Article 2 – paragraph 1 – point 13 – point d (new)
Article 2 – paragraph 1 – point 13 – point d (new)
d) in which the legal representative of the service provider is established;
Amendment 471 #
Proposal for a regulation
Article 4 – paragraph 1 – introductory part
Article 4 – paragraph 1 – introductory part
1. A European Production Order for subscriber data and access data may be issued by:
Amendment 478 #
Proposal for a regulation
Article 4 – paragraph 2 – introductory part
Article 4 – paragraph 2 – introductory part
2. A European Production Order for transactional and content data may be issued only by:
Amendment 488 #
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), 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. with due regard to the rights of the suspected or accused person. It may only be issued if it could have been ordered for the same criminal offence under the same conditions in a similar domestic case in the issuing state, and where there is reason to believe that the criminal offence has been committed, and where it is grave enough to justify the cross-border production of the data.
Amendment 492 #
Proposal for a regulation
Article 5 – paragraph 3
Article 5 – paragraph 3
3. European Production Orders to produce subscriber data or access data may be issued for all criminal offences punishable in the issuing and the executing state.
Amendment 497 #
Proposal for a regulation
Article 5 – paragraph 4 – introductory part
Article 5 – paragraph 4 – introductory part
4. European Production Orders to produce transactionalffic data or content data may only be issued
Amendment 501 #
Proposal for a regulation
Article 5 – paragraph 4 – point a
Article 5 – paragraph 4 – point a
(a) for criminal offences punishable in the issuing and executing State by a custodial sentence of a maximum of at least 35 years, or
Amendment 510 #
Proposal for a regulation
Article 5 – paragraph 5 – point b
Article 5 – paragraph 5 – point b
(b) the addressees of the European Production Order as referred to in Article 7;
Amendment 513 #
Proposal for a regulation
Article 5 – paragraph 5 – point d
Article 5 – paragraph 5 – point d
(d) the requested data category (subscriber data, access data, transactionaltraffic data or content data);
Amendment 524 #
Proposal for a regulation
Article 5 – paragraph 7
Article 5 – paragraph 7
7. If the issuing authority has reasons to believe that, transactionalffic or content data requested is protected by immunities and privileges granted under the law of the Member State where the service provider is addressed, or its disclosure may impact fundamental interests of that Member State such as national security and defence, the issuing authority has to seek clarification before issuing the European Production Order, including by consulting the competent authorities of the Member State concerned, either directly or via Eurojust or the European Judicial Network. If the issuing authority finds that the requested access, transactionaltraffic or content data is protected by such immunities and privileges or its disclosure would impact fundamental interests of the other Member State, it shall not issue the European Production Order.
Amendment 527 #
Proposal for a regulation
Article 6 – paragraph 2
Article 6 – paragraph 2
2. It may be issued where necessary and proportionate to prevent the removal, deletion or alteration of data in view of a subsequent request for production of this data via mutual legal assistance, a European InvestigaProduction Order or a European Production Order., with due regard to the rights of the suspected or accused person. A European Preservation Orders to preserve data may be issued for all criminal offences punishable in the issuing and the executing state, if it could have been ordered for the same criminal offence under the same conditions in a similar domestic case and where there is reason to believe the criminal offence has been committed, and where it is grave enough to justify the preservation of the data.
Amendment 531 #
Proposal for a regulation
Article 6 – paragraph 3 – point d
Article 6 – paragraph 3 – point d
(d) the data category to be preserved (subscriber data, access data, transactionaltraffic data or content data);
Amendment 536 #
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, with due regard to the rights of the suspected or accused person.
Amendment 537 #
Proposal for a regulation
Article 6 a (new)
Article 6 a (new)
Article 6 a Legal representative 1. Where a service provider, offering services in the Member States bound by this Regulation, is not established in the Union, it shall designate one legal representative for receipt of, compliance with and enforcement of European Production Orders and European Preservation Orders issued by the competent authorities of the Member States, for the purpose of gathering electronic information in criminal proceedings. The legal representative shall be established in one of the Member States bound by this Regulation where the service provider offers its services. 2. Where a service provider, offering services in the Member States bound by this Regulation, is established in a Member State not bound by this Regulation, it shall designate one legal representative for receipt of, compliance with and enforcement of European Production Orders and European Preservation Orders issued by the competent authorities of the Member States, for the purpose of gathering electronic information in criminal proceedings. The legal representative shall be established in one of the Member States bound by this Regulation where the service provider offers its services. 3. Upon designation of the legal representative, the service provider shall notify in writing that Member State where its legal representative is established. The notification shall contain the designation and contact details of its legal representative as well as any changes thereof. 4. The notification shall specify the official language(s) of the Union, as referred to in Regulation 1/58, in which the legal representative can be addressed. This shall include, at least, one of the official languages of the Member State where the legal representative is established. 5. Information, notified to Member States in accordance with this Article, shall be made publicly available on a dedicated internet page of the European Judicial Network in criminal matters. Such information shall be regularly updated. 6. Member States shall lay down rules on sanctions applicable to infringements pursuant to this Article and shall take all measures necessary to ensure that they are implemented. The sanctions provided for shall be effective, proportionate and dissuasive.
Amendment 540 #
Proposal for a regulation
Article 7 – paragraph 1
Article 7 – paragraph 1
1. TFor the purpose of gathering evidence in criminal proceedings, the European Production Order and the European Preservation Order shall be addressed directly to a legal representative designated by the service provider for the purpose of gathering evidence in criminal proceedings.and simultaneously:
Amendment 542 #
Proposal for a regulation
Article 7 – paragraph 1 – point a (new)
Article 7 – paragraph 1 – point a (new)
(a) to the service provider, or where applicable, its legal representative in the executing state; and (This amendment applies throughout the text. Adopting it will necessitate corresponding changes throughout.)
Amendment 543 #
Proposal for a regulation
Article 7 – paragraph 1 – point b (new)
Article 7 – paragraph 1 – point b (new)
(b) to the executing authority.
Amendment 545 #
Proposal for a regulation
Article 7 – paragraph 1 a (new)
Article 7 – paragraph 1 a (new)
1 a. Where the identity of the person suspected or accused is already known to the issuing authority, and its State of permanent residence is neither the issuing nor the executing state, the European Production Order shall also be transmitted simultaneously to the affected authority of the State of permanent residence of that person.
Amendment 552 #
Proposal for a regulation
Article 7 – paragraph 3
Article 7 – paragraph 3
3. Where the legal representativeservice provider does not comply with an EPOC in an emergency case pursuant to Article 9(2), the EPOC may be addressed to any establishment of the service provider in the Union.
Amendment 555 #
Proposal for a regulation
Article 7 – paragraph 4
Article 7 – paragraph 4
4. Where the legal representativeservice provider does not comply with its obligations under Articles 9 or 10 and the issuing authority considers that there is a serious risk of loss of data, the European Production Order or the European Preservation Order may be addressed to any establishment of the service provider in the Union.
Amendment 564 #
Proposal for a regulation
Article 8 – paragraph 2 – subparagraph 1
Article 8 – paragraph 2 – subparagraph 1
The EPOC or the EPOC-PR shall be directly transmitted by any means capable ofin a secure and reliable way, allowing the addressee to producinge a written record under conditions allowing the addressee to establish its authenticity, ensuring secrecy, confidentiality, integrity, and allowing the addressee to establish the authenticity of the Order and of the issuing authority. In particular where the transmission takes place via electronic means, open and commonly used, state- of-the-art electronic signature and encryption technology shall be applied.
Amendment 566 #
Proposal for a regulation
Article 8 – paragraph 2 – subparagraph 2
Article 8 – paragraph 2 – subparagraph 2
Amendment 568 #
Proposal for a regulation
Article 8 – paragraph 3
Article 8 – paragraph 3
3. The EPOC shall contain the information listed in Article 5(5) (a) to (h), including sufficient information to allow the addressees to identify and contact the issuing authority, and information regarding the means and technical interfaces it has at its disposal to receive the produced data, or where to find this information. The grounds for the necessity and proportionality of the measure or further details about the investigations shall not be included.
Amendment 572 #
Proposal for a regulation
Article 8 – paragraph 4
Article 8 – paragraph 4
4. The EPOC-PR shall contain the information listed in Article 6(3) (a) to (fg), including sufficient information to allow the addressee to identify and contact the issuing authority. The grounds for the necessity and proportionality of the measure or further details about the investigations shall not be included.
Amendment 577 #
Proposal for a regulation
Article 8 – paragraph 5
Article 8 – paragraph 5
5. Where needed, tThe EPOC or the EPOC-PR shall be translated into an official language of the Union accepted by the addressee. Where no language has been specified, the EPOC or the EPOC- PR shall be translated into one of the official languages of the Member State where the legal representative resides or is established, or a language explicitly accepted by the executing state, and, where applicable, the affected state .
Amendment 584 #
Proposal for a regulation
Article 9 – paragraph 1
Article 9 – paragraph 1
1. Upon receipt of the EPOC, the addressee shall ensure that the requested data is transmitted directly to the issuransmitted ing 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.ccordance with this Regulation, the executing authority shall, without undue delay:
Amendment 588 #
Proposal for a regulation
Article 9 – paragraph 1 – point a (new)
Article 9 – paragraph 1 – point a (new)
(a) acknowledge the receipt of the EPOC to the issuing authority; and
Amendment 589 #
Proposal for a regulation
Article 9 – paragraph 1 – point b (new)
Article 9 – paragraph 1 – point b (new)
(b) notify the service provider that it is the competent executing authority, and, in the event that Article 10a (3) applies, of the means and technical interfaces it has at its disposal to receive the produced data, or where to find this information.
Amendment 590 #
Proposal for a regulation
Article 9 – paragraph 1 a (new)
Article 9 – paragraph 1 a (new)
1 a. Upon receipt of the EPOC, transmitted in accordance with this Regulation, the service provider, shall, without undue delay, and at the latest within a period of 10 days upon receipt of the EPOC: a) acknowledge the receipt of the EPOC to the issuing authority; b) act expeditiously to preserve the requested data and prepare for their production; c) as soon as the data are ready for production, notify the executing authority; d) in the cases covered under Article 10a (3) applies, as soon as the data are ready for production, make them available to the executing authority; e) where the executing authority has positively confirmed the EPOC, transmit or make available the requested data directly to the issuing authority or the law enforcement authorities as indicated in the EPOC.
Amendment 593 #
Proposal for a regulation
Article 9 – paragraph 1 b (new)
Article 9 – paragraph 1 b (new)
1 b. The executing authority shall take a decision at the latest within a period of 10 days upon receipt of the EPOC and inform the issuing authority, the service provider, and, where applicable, the affected authority of its decision to either: a) invoke one of the grounds for non- recognition or non-execution provided for in Article 10a and declare the EPOC null and void;or b) validate the EPOC and ensure its execution in the same way and under the same modalities as if the investigative measure concerned had been ordered by an authority of the executing state.
Amendment 597 #
Proposal for a regulation
Article 9 – paragraph 2
Article 9 – paragraph 2
2. In emergency cases, the addressee shall transmit the requested data without undue delay, at the latestprocedures laid down in paragraphs 1, 1a, and 1b of this Article shall be executed within 624 hours upon receipt of the EPOC by the service provider and the executing authority.
Amendment 601 #
Proposal for a regulation
Article 9 – paragraph 2 a (new)
Article 9 – paragraph 2 a (new)
2 a. Where it is known that the person whose data is sought is residing neither in the issuing State nor in the executing State, and the affected authority believes that one of the grounds for non- recognition or non-execution pursuant to Article 10a exists, it shall immediately inform the executing authority. The executing authority shall take utmost account of that information.
Amendment 606 #
Proposal for a regulation
Article 9 – paragraph 3
Article 9 – paragraph 3
3. If the addressee cannot comply with its obligation because the EPOC is incomplete, contains manifest errors, that make the execution impossible, or does not contain sufficient information to execute the EPOC, the addressee shall 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 asexecuting authority, on its own initiative or at the request of the service provider, or, where applicable, the affected authority, shall inform the issuing authority referred to in the EPOC without undue delay and ask for clarification or correction from the issuing authority, using the Form set out in paragraph 6Annex III. The issuing authority shall react expeditiously and within 5 days at the latest. The deadlines set out in paragraphs 1, 1a, 1b, 2 and 2a shall not apply until the clarification is provided. In the absence of a reaction from the issuing authority, the order shall be considered null and void.
Amendment 610 #
Proposal for a regulation
Article 9 – paragraph 4
Article 9 – paragraph 4
4. If the addressees cannot comply with itstheir obligations because of force majeure or of de facto impossibility not attributable to the addressee or, if different, the service providers, notably because the person whose data is sought is not their customer, or because the data has been deleted before receiving the EPOC, or the addresseeservice provider cannot comply in a timely manner, including for technical or operational reasons, the executing authority, on its own initiative or at the request of the service provider, or, where applicable, the affected authority, shall inform the issuing authority referred to in the EPOC without undue delay explaining the reasons, using the Form set out in Annex III. If the relevant conditions are fulfilled, the issuing authority shall withdraw the EPOC. and inform the addressees of its decision.
Amendment 614 #
Proposal for a regulation
Article 9 – paragraph 5 – subparagraph 1
Article 9 – paragraph 5 – subparagraph 1
In all cases where the addressee cannot or does not provide the requested information pursuant to paragraphs 3 and 4, does not provide it exhaustively or does not provide it within the deadline, for other reasons, it shall inform the issuing authority without undue delay and at the latest within the deadlines set out in paragraphs 1 and 2 of the reasons for this using the Form in Annex III. The issuing authority shall review the order in light of the information provided by the service provider and if necessary, set a new deadline for the service provider to produce the data.
Amendment 616 #
Proposal for a regulation
Article 9 – paragraph 5 – subparagraph 2
Article 9 – paragraph 5 – subparagraph 2
Amendment 620 #
Proposal for a regulation
Article 9 – paragraph 5 a (new)
Article 9 – paragraph 5 a (new)
5 a. Where the service provider considers that the EPOC cannot be executed because, based on the sole information contained in the EPOC, it is apparent that it manifestly violates the Charter of Fundamental Rights of the European Union, or that it is manifestly abusive, the service provider shall also send the Form set out in Annex III to the executing authority. The executing authority, on its own initiative or on request of the service provider, or, where applicable, the affected authority may seek clarifications from the issuing authority on the European Production Order, either directly or via Eurojust or the European Judicial Network. The issuing authority shall react expeditiously and within 5 days at the latest. The deadlines set out in paragraphs 1, 1a, 1b, 2 and 2a shall not apply until the clarification is provided. The executing authority may decide within 5 more days that the EPOC shall be considered null and void. In the absence of a reaction from the issuing authority, the order shall be considered null and void.
Amendment 621 #
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 with paragraph 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 delayDuring the procedure referred to in paragraphs 1, 1a, 1b, 2, 2a, 3, 4, 5 and 5a, the service provider shall preserve the data requested.
Amendment 623 #
Proposal for a regulation
Article 9 – paragraph 6 a (new)
Article 9 – paragraph 6 a (new)
6 a. Unless this would run counter to the rights of the suspected or accused person to seek legal redress, the provider shall destroy the data specifically preserved pursuant to this Regulation, where: a) the data has been transmitted;or b) the order has been finally determined as null and void.
Amendment 627 #
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 the issuing authority confirms that the subsequent request for production has been launched.ransmitted in accordance with this Regulation, the executing authority shall, without undue delay:
Amendment 631 #
Proposal for a regulation
Article 10 – paragraph 1 – point a (new)
Article 10 – paragraph 1 – point a (new)
(a) acknowledge the receipt of the EPOC-PR to the issuing authority; and
Amendment 632 #
Proposal for a regulation
Article 10 – paragraph 1 – point b (new)
Article 10 – paragraph 1 – point b (new)
(b) notify the service provider that it is the competent executing authority.
Amendment 634 #
Proposal for a regulation
Article 10 – paragraph 1 a (new)
Article 10 – paragraph 1 a (new)
1 a. Upon receipt of the EPOC-PR, transmitted in accordance with this Regulation, the service provider shall, without undue delay, and at the latest within a period of 10 days upon receipt of the EPOC-PR: a) acknowledge the receipt of the EPOC- PR to the issuing authority; b) act expeditiously to preserve the requested data.
Amendment 635 #
Proposal for a regulation
Article 10 – paragraph 1 b (new)
Article 10 – paragraph 1 b (new)
1 b. The executing authority shall take a decision at the latest within a period of 10 days upon receipt of the EPOC-PR and inform the issuing authority, the service provider of its decision to either: a) invoke one of the grounds for non- recognition or non-execution provided for in Article 10a , in which case it shall inform the issuing authority and the service provider of such decision and that the preservation shall cease immediately;or b) confirm the EPOC-PR and inform the service provider, or, where applicable, its legal representative to continue to preserve the data for a period of a total of 30 days, renewable once.
Amendment 637 #
Proposal for a regulation
Article 10 – paragraph 2
Article 10 – paragraph 2
2. If the issuing authority confirms within the time30 or 60-day period set out in paragraphs 1, 1a, and 1b that the subsequent request for pEuropean Production Order has been launchissued, the addresseeservice provider shall preserve the data as long as necessary to produce the data once the subsequent request for production is servedfor the execution of that European Production Order pursuant to Article 9.
Amendment 642 #
Proposal for a regulation
Article 10 – paragraph 4
Article 10 – paragraph 4
4. If the addressee cannot comply with its obligation because the CertificateEPOC-PR is incomplete, contains manifest errors, that make the execution impossible, or does not contain sufficient information to execute the EPOC-PR, the addresseeor is manifestly abusive, the executing authority, on its own initiative or at the request of the service provider, shall inform the issuing authority set out in the EPOC-PR without undue delay and ask for clarification from or correction by the issuing authority, using the Form set out in Annex III. The issuing authority shall react expeditiously and within 5 days at the latest. The addressees shall ensure that on its side the needed clarification can be received in order to fulfil itstheir obligations set out in paragraphs 1, 1a, and 1b. In the absence of a reaction from the issuing authority, the order shall be considered null and void.
Amendment 644 #
Proposal for a regulation
Article 10 – paragraph 4 a (new)
Article 10 – paragraph 4 a (new)
4 a. Where the addressee considers that the EPOC-PR cannot be executed because based on the sole information contained in the EPOC-PR it is apparent that it manifestly violates the Charter of Fundamental Rights of the European Union or that it is manifestly abusive, the addressee shall also send the Form set out in Annex III to the executing authority. The executing authority, on its own initiative or at the request of the service provider, or, where applicable, the affected authority or the competent enforcement authority may seek clarifications from the issuing authority on the European Preservation Order, either directly or via Eurojust or the European Judicial Network. The issuing authority shall react expeditiously and within 5 days at the latest. The deadlines set out in paragraphs 1, 1a, 1b, and 2 shall not apply until the clarification is provided. The executing authority may decide within 5 more days that the EPOC-PR shall be considered null and void. In the absence of a reaction from the issuing authority, the order shall be considered null and void.
Amendment 645 #
Proposal for a regulation
Article 10 – paragraph 5
Article 10 – paragraph 5
5. If the addressees cannot comply with itstheir obligations because of force majeure, or of de facto impossibility not attributable to the addressee or, if different, the service providers, including for technical or operational reasons, notably because the person whose data is sought is not their customer, or the data has been deleted before receiving the Order, itor the service provider cannot comply in a timely manner, including for technical or operational reasons, the executing authority, on its own or on request of the service provider, shall contact the issuing authority set out in the EPOC-PR without undue delay explaining the reasons, using the Form set out in Annex III. If these conditions are fulfilled, the issuing authority shall withdraw the EPOC-PR and inform the addressees of its decision.
Amendment 650 #
Proposal for a regulation
Article 10 – paragraph 6 a (new)
Article 10 – paragraph 6 a (new)
6 a. During the procedure referred to in paragraphs 1, 1a, 1b, 4, 4a and 5, the service provider shall preserve the requested data.
Amendment 651 #
6 b. The provider shall destroy the data specifically preserved for the abovementioned purposes, where: a) this does not interfere with any possibility of the person whose data was sought to seek redress against the measures taken under this Regulation; b) this does not interfere with any possibility of the person whose data was sought to use the data for exculpatory purposes; c) the data has been transmitted to the issuing authority; d) the decision has been made that the preservation of data shall cease; e) the preservation period has run its course;or f) the preservation has been finally determined no longer necessary.
Amendment 664 #
Proposal for a regulation
Article 10 a (new)
Article 10 a (new)
Amendment 668 #
Proposal for a regulation
Article 11 – paragraph -1 (new)
Article 11 – paragraph -1 (new)
-1. The issuing authority shall inform the person whose data is being sought, unless justified concerns that this would obstruct the relevant criminal investigations exist.
Amendment 671 #
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 confidentiastate-of-the- art operational and technical measures to ensure the confidentiality, secrecy, integrity, and availability 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 towhere justified concerns that this would obstruct the relevant criminal proceedingsinvestigations exist.
Amendment 683 #
2. Where the issuing authority itself refrained, or requested the addressee to refrain from informing the person whose data is being sought, the issuing authority shall inform the person whose data is being sought by the EPOC 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.
Amendment 692 #
Proposal for a regulation
Article 11 a (new)
Article 11 a (new)
Article 11 a Limitations to the use of information obtained 1. The executing authority shall inquire from the issuing authority whether under the national laws of the issuing state electronic information which has been produced or preserved by an EPOC or EPOC-PR is admissible for the purpose of proceedings other than those for which it was obtained in accordance with this Regulation. 2. The issuing authority shall respond within the deadline pursuant to Article 9. If the issuing authority confirms the admissibility of such electronic information, and such information is inadmissible under the laws of the executing state, the executing authority can deny the production of the information and declare the order as having ceased to be valid.
Amendment 695 #
Proposal for a regulation
Article 11 b (new)
Article 11 b (new)
Article 11 b Admissibility and erasure of electronic information 1. Electronic information that has been gathered in breach of this Regulation shall not be admissible before a court, and shall immediately be erased, unless 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/EC11a. 2. Electronic information that is no longer necessary for the investigation or prosecution for which it was produced or preserved, shall immediately be erased. For this, Member States shall provide for appropriate time limits to be established for the erasure of electronic information produced or preserved or for a periodic review of the need of the storage of the electronic information. Procedural measures shall ensure that those time limits are observed. 3. The affected person shall be informed about the erasure. _________________ 11aCouncil 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 345, 23.12.2008. p. 75).
Amendment 698 #
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 for domestic orders in similar situations, in accordance with thissuing State shall reimburse the adequate costs borne by the service provider and related to the execution of the European Production Order or the European Prese nrvational provisions Order.
Amendment 705 #
Proposal for a regulation
Article 13 – paragraph 1 a (new)
Article 13 – paragraph 1 a (new)
Service providers shall not be held liable in Member States for the consequences resulting from compliance with this Regulation. Where a service provider acts with due diligence, in particular with regards to data protection obligations, manifest errors in an Order, illegal requests, or where an Order manifestly violates fundamental rights or is abusive, the service provider shall have the possibility to request clarification, or justification from the issuing authority through the executing authority. Where it acted faithfully, a service provider shall not be held liable for the consequences from any delays caused.
Amendment 716 #
Proposal for a regulation
Article 14 a (new)
Article 14 a (new)
Amendment 734 #
Proposal for a regulation
Article 17 – paragraph 1
Article 17 – paragraph 1
1. Suspects and accused pPersons whose data was obtainedsought via a European Production Order or a European Preservation Order shall have the right to effective remedies against the European Productionsuch Orders during the criminal proceedings for which the Order was issuedissuing and executing State in accordance with national law, without prejudice to remedies available under Directive (EU) 2016/680 and Regulation (EU) 2016/679.
Amendment 741 #
Proposal for a regulation
Article 17 – paragraph 2
Article 17 – paragraph 2
Amendment 754 #
Proposal for a regulation
Article 19 – paragraph 2 – point a a (new)
Article 19 – paragraph 2 – point a a (new)
(a a) the number of EPOCs and EPOC- PRs issued under emergency case derogations, including specific and comprehensive details on circumstances and possible outcomes;
Amendment 755 #
Proposal for a regulation
Article 19 – paragraph 2 – point a b (new)
Article 19 – paragraph 2 – point a b (new)
(a b) the number of EPOCs and EPOC- PRs issued making use of the possibility of the issuing authority to request the service provider to refrain from informing the person whose data is being sought pursuant to Article 11(1), including comprehensive information of the circumstances and possible later information pursuant to Article 11(2);
Amendment 773 #
Proposal for a regulation
Article 22 – paragraph 1 – introductory part
Article 22 – paragraph 1 – introductory part
1. By [... [12 months before the date of application of this Regulation] each Member State shall notify the Commission of the following:
Amendment 776 #
Proposal for a regulation
Article 22 – paragraph 1 – point b a (new)
Article 22 – paragraph 1 – point b a (new)
(b a) the means and technical interfaces the issuing and executing authorities have at their disposal to receive or access data produced;
Amendment 783 #
Proposal for a regulation
Article 24 – paragraph 1
Article 24 – paragraph 1
By [5 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 its scope. If necessary, the report shall be accompanied by legislative proposals. It shall in particular evaluate the cases making use of the emergency derogation pursuant to Article 9(2), the non-information of the user pursuant to Article 11, and possible chilling effects of this instrument. 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.
Amendment 786 #
Proposal for a regulation
Article 25 – paragraph 2
Article 25 – paragraph 2
It shall apply from [6 months after its entry into force]. 18 months after its entry into force] with the exception of Article 22, which shall apply from [12 months after its entry into force]. It shall expire 5 years after its entry into force.
Amendment 789 #
Proposal for a regulation
Article 25 – paragraph 2 a (new)
Article 25 – paragraph 2 a (new)
No later than two years after this Regulation has entered into force, the Commission shall present a legislative proposal for integrating the European Production and Preservation Orders into Directive 2014/41/EU of the European Parliament and of the Council25a . _________________ 25aDirective 2014/41/EU of the European Parliament and of the Council of 3 April 2014 regarding the European Investigation Order in criminal matters, OJ L 130, 1.5.2014, p. 1.
Amendment 791 #
Proposal for a regulation
Annex I – paragraph 1
Annex I – paragraph 1
Under Regulation (EU)….52 the addressee of the European Production Order Certificate (EPOC) must execute the EPOC and must transmit the requested data to the authority indicated under point (i) of Section G of the EPOC. If the data is not produced, the addressee must, upon receipt of the EPOC, preserve the data requested, unless the information in the EPOC does not allow it to identify this data. Preservation shall be upheld until the data is produced or until the issube addressed directly and simultaneously to the service provider or, where applicable, to its legal representative, and the executing authority or, and, where applicable, the enforcingaffected authority, indicates that it is no longer neccessary to preserve and produce dataexecute the EPOC. _________________ 52Regulation of the European Parliament and of the Council on European Production and Preservation Orders for electronic evidence in criminal matters (OJ L …)
Amendment 792 #
Proposal for a regulation
Annex I – paragraph 2
Annex I – paragraph 2
The addressees must take necessary measures to ensure the confidentiality of the EPOC and of the data produced or preserved.
Amendment 793 #
Proposal for a regulation
Annex I – part A – paragraph 3
Annex I – part A – paragraph 3
Addressee:……………….……………… …………………………………………… …s (tick the appropriate box and complete):……………….……………… …………………………………………… … [] service provider: ... [] legal representative of the service provider: ... [] executing authority: ... [] affected authority: ...
Amendment 794 #
Proposal for a regulation
Annex I – part B – paragraph 1 – subparagraph 1
Annex I – part B – paragraph 1 – subparagraph 1
[ ] within 10 days at the latest, where the executing authority has not invoked any grounds for non-recognition or non- execution during the same period:
Amendment 795 #
Proposal for a regulation
Annex I – part B – paragraph 1 – subparagraph 2 – introductory part
Annex I – part B – paragraph 1 – subparagraph 2 – introductory part
[ ] within 624 hours at the latest in the event of an emergency involving as described below, where the executing authority has not invoked any of the grounds for non- recognition or non-execution during the same period:
Amendment 796 #
Proposal for a regulation
Annex I – part B – paragraph 1 – subparagraph 2 – subparagraph 1
Annex I – part B – paragraph 1 – subparagraph 2 – subparagraph 1
[ ] an imminent threat to a person’sthe life or physical integrity of a person. Justification, if necessary: …………………………………………… …………………………………………… ……….
Amendment 797 #
Proposal for a regulation
Annex I – part B – paragraph 1 – subparagraph 3
Annex I – part B – paragraph 1 – subparagraph 3
Amendment 798 #
Proposal for a regulation
Annex I – part C – paragraph 1 – subparagraph 1
Annex I – part C – paragraph 1 – subparagraph 1
[ ] the addresees must refrain from informing the person whose data is being sought of the EPOC because this could obstruct the relevant criminal investigations. Justification: ...
Amendment 799 #
Proposal for a regulation
Annex I – part D – point i – paragraph 1 – introductory part
Annex I – part D – point i – paragraph 1 – introductory part
[ ] subscriber data, including but not limited to:
Amendment 800 #
Proposal for a regulation
Annex I – part D – point i – paragraph 2
Annex I – part D – point i – paragraph 2
Amendment 801 #
Proposal for a regulation
Annex I – part D – point i – paragraph 3 – introductory part
Annex I – part D – point i – paragraph 3 – introductory part
[ ] transactionalffic data:
Amendment 802 #
Proposal for a regulation
Annex I – part D – point i – paragraph 3 – subparagraph -1 (new)
Annex I – part D – point i – paragraph 3 – subparagraph -1 (new)
-1 [] IP connection records / logs for identification purposes
Amendment 803 #
Proposal for a regulation
Annex I – part D – point i – paragraph 3 – subparagraph 1 – introductory part
Annex I – part D – point i – paragraph 3 – subparagraph 1 – introductory part
[ ] other traffic data, including but not limited to:
Amendment 804 #
Proposal for a regulation
Annex I – part D – point i – paragraph 3 – subparagraph 1 – point c – paragraph 3 a (new)
Annex I – part D – point i – paragraph 3 – subparagraph 1 – point c – paragraph 3 a (new)
[] prepaid balance charging history
Amendment 805 #
Proposal for a regulation
Annex I – part D – point i – paragraph 3 – subparagraph 1 – point c – paragraph 4
Annex I – part D – point i – paragraph 3 – subparagraph 1 – point c – paragraph 4
Amendment 806 #
Proposal for a regulation
Annex I – part D – point i – paragraph 4 – introductory part
Annex I – part D – point i – paragraph 4 – introductory part
[ ] content data, including but not limited to:
Amendment 807 #
Proposal for a regulation
Annex I – part D – point i – paragraph 4 – subparagraph -1 (new)
Annex I – part D – point i – paragraph 4 – subparagraph -1 (new)
-1 [] contact list
Amendment 808 #
Proposal for a regulation
Annex I – part D – point ii – introductory part
Annex I – part D – point ii – introductory part
(ii) TheAdditional information below is made available to you to allowin order to executinge the EPOC:
Amendment 809 #
Proposal for a regulation
Annex I – part D – point iii – introductory part
Annex I – part D – point iii – introductory part
(iii) If applicable, tThe time range requested to be produced:
Amendment 810 #
Proposal for a regulation
Annex I – part D – point iv – paragraph 1
Annex I – part D – point iv – paragraph 1
[ ] the requested data was preserved in accordance with an earlier request for preservation issued by………………………….……………… …………………………..…… (indicate the authority, and, if available, the date of transmission of request and reference number) and transmitted to …………………………………………… …..…………………… (indicate the service provider/ legal representative/ public authorityaddressees to which it was transmitted and, if available, the reference number given by the addressees)
Amendment 811 #
Proposal for a regulation
Annex I – part D – point v – paragraph 2 – introductory part
Annex I – part D – point v – paragraph 2 – introductory part
The current EPOC is issued for transactionalffic and / or content data and concerns (tick the relevant box(es), if applicable):
Amendment 812 #
Proposal for a regulation
Annex I – part D – point v – paragraph 2 – subparagraph 1
Annex I – part D – point v – paragraph 2 – subparagraph 1
[ ] criminal offence(s) punishable in the issuing State by a custodial sentence of a maximum of at least 35 years;
Amendment 814 #
Proposal for a regulation
Annex I – part D – point vi
Annex I – part D – point vi
Amendment 815 #
Proposal for a regulation
Annex I – part E – paragraph 1 – subparagraph 2
Annex I – part E – paragraph 1 – subparagraph 2
[ ] public prosecutor (for subscriber and access data)
Amendment 816 #
Proposal for a regulation
Annex I – part E – paragraph 1 – subparagraph 3
Annex I – part E – paragraph 1 – subparagraph 3
[ ] public prosecutor (for transactionalffic and content data) → please complete also Section (F)
Amendment 817 #
Proposal for a regulation
Annex I – part F – paragraph 1 – subparagraph 2
Annex I – part F – paragraph 1 – subparagraph 2
[ ] public prosecutor (for subscriber and access data)
Amendment 818 #
Proposal for a regulation
Annex II – paragraph 1
Annex II – paragraph 1
Under Regulation (EU) ...53 the addressee of the European Preservation Order Certificate (EPOC-PR) must, without undue delay after receiving the EPOC-PR preserve the data requested. The preservation will cease after 60 days, unless the issuing authority confirms that a subsequent request for production has been launched. If the issuing authority confirms within those 60 days that a subsequent request for production has been launched, the addressee must preserve the data for as long as necessary to produce the data once the subsequent request for production is served be addressed directly and simultaneously to the service provider or, where applicable, to its legal representative, and to the executing authority in order to execute the EPOC- PR. _________________ 53Regulation of the European Parliament and of the Council on European Production and Preservation Orders for electronic evidence in criminal matters (OJ L …)
Amendment 819 #
The addressees must take necessary measures to ensure the confidentiality of the EPOC-PR and of the data preserved or produced.
Amendment 820 #
Proposal for a regulation
Annex II – part A – paragraph 3
Annex II – part A – paragraph 3
Addressee:……………...…………..…… …………………………………………… ……..…s (tick the appropriate box and complete):……………...…………..…… …………………………………………… ……..… [] service provider: ... [] legal representative of the service provider: ... [] executing authority: ...
Amendment 821 #
Proposal for a regulation
Annex II – part B – paragraph 1 – subparagraph 1
Annex II – part B – paragraph 1 – subparagraph 1
[ ] the addresees must refrain from informing the person whose data is being sought of the EPOC-PR because this could obstruct the relevant criminal investigations. Justification: ...
Amendment 822 #
Proposal for a regulation
Annex II – part C – point i – paragraph 1 – introductory part
Annex II – part C – point i – paragraph 1 – introductory part
[ ] subscriber data, including but not limited to:
Amendment 823 #
Proposal for a regulation
Annex II – part C – point i – paragraph 2
Annex II – part C – point i – paragraph 2
Amendment 824 #
Proposal for a regulation
Annex II – part C – point i – paragraph 3 – introductory part
Annex II – part C – point i – paragraph 3 – introductory part
[ ] transactionalffic data:
Amendment 825 #
Proposal for a regulation
Annex II – part C – point i – paragraph 3 – subparagraph -1 (new)
Annex II – part C – point i – paragraph 3 – subparagraph -1 (new)
-1 [ ] IP connection records / logs for identification purposes
Amendment 826 #
Proposal for a regulation
Annex II – part C – point i – paragraph 3 – subparagraph 1 – introductory part
Annex II – part C – point i – paragraph 3 – subparagraph 1 – introductory part
[ ] other traffic data, including but not limited to:
Amendment 827 #
Proposal for a regulation
Annex II – part C – point i – paragraph 3 – subparagraph 1 – point c – paragraph 2 a (new)
Annex II – part C – point i – paragraph 3 – subparagraph 1 – point c – paragraph 2 a (new)
[ ] prepaid balance charging history
Amendment 828 #
Proposal for a regulation
Annex II – part C – point i – paragraph 3 – subparagraph 3
Annex II – part C – point i – paragraph 3 – subparagraph 3
Amendment 829 #
Proposal for a regulation
Annex II – part C – point i – paragraph 4 – subparagraph -1 (new)
Annex II – part C – point i – paragraph 4 – subparagraph -1 (new)
-1 [] contact list
Amendment 830 #
Proposal for a regulation
Annex II – part C – point ii – introductory part
Annex II – part C – point ii – introductory part
(ii) Information below is made available to you to allowAdditional information in order to executinge the EPOC-PR:
Amendment 831 #
Proposal for a regulation
Annex II – part C – point iii – introductory part
Annex II – part C – point iii – introductory part
(iii) If applicable, tThe time range requested to be preserved:
Amendment 832 #
Proposal for a regulation
Annex III – part B – paragraph 1
Annex III – part B – paragraph 1
Amendment 833 #
Proposal for a regulation
Annex III – part C – paragraph 4
Annex III – part C – paragraph 4
Amendment 834 #
Proposal for a regulation
Annex III – part D – title
Annex III – part D – title
D Reasons for impossibility of executing the EPOC/EPOC-PR
Amendment 836 #
Proposal for a regulation
Annex III – part D – point i – paragraph 10
Annex III – part D – point i – paragraph 10
[ ] based on the sole information contained in the EPOC / EPOC-PR, it is apparent that the EPOC / EPOC-PR manifestly violates the Charter of Fundamental Rights or is manifestly abusive
Amendment 837 #
Proposal for a regulation
Annex III – part D a (new)
Annex III – part D a (new)
Da SECTION D a:Grounds for non- recognition or non-execution 1.Mandatory grounds for non-recognition or non-execution: [ ] the execution of the European Production Order or European Preservation Order would be contrary to the principle of ne bis in idem; [ ] there are substantial grounds to believe that the execution of the European Production Order or European Preservation Order would be incompatible with a Member State's obligations in accordance with Article 6 TEU and the Charter; [ ] there is an immunity or a privilege under the law of the executing State, or, where applicable, the affected State; [ ] the EPOC or EPOC-PR has been issued in criminal proceedings and the investigative measure would not be authorised under the law of the executing State in a similar domestic case. 2.Optional grounds for non-recognition or non-execution: [ ] the conditions for issuing a European Production Order or European Preservation Order, as laid down in Articles 5 and 6 of this Regulation are not fulfilled; [ ] the EPOC or the EPOC-PR is incomplete or manifestly incorrect, in form or content, and has not been completed or corrected following the consultations referred to in Article 9 (3), (4) and (5) and Article 10 (4) and (5) of this Regulation; [ ] in a specific case the execution of the European Production Order or European Preservation Order would harm essential national security interests, jeopardise the source of the information or involve the use of classified information relating to specific intelligence activities; [ ] the European Production Order or European Preservation Order relates to a criminal offence which is alleged to have been committed outside the territory of the issuing State and the law of the executing State does not allow prosecution for the same offence when committed outside its territory;or the EPOC or the EPOC-PR relates to a criminal offence which is alleged to have been committed wholly or partially on the territory of the executing State; [ ] the conduct for which the EPOC or the EPOC-PR has been issued does not constitute an offence under the law of the executing State, unless it concerns an offence listed within the categories of offences set out in Annex IIIa; [ ] the execution of the European Production Order or European Preservation Order is restricted under the law of the executing State to a list or category of offences or to offences punishable by a higher threshold; [ ] compliance with the European Production Order or the European Preservation Order would conflict with applicable laws of a third country that prohibit disclosure of the data concerned in accordance with the national law of the executing state.
Amendment 838 #
Proposal for a regulation
Annex III – part G – paragraph 1 – subparagraph 1
Annex III – part G – paragraph 1 – subparagraph 1
[ ] will be preserved until data is produced or until the issuing authorityfor 5 days for clarification, or, where applicable the enforcing authority informs that it is no longer necessary to preserve and produce datanecessary, correction, by the issuing authority
Amendment 839 #
Proposal for a regulation
Annex III – part G – paragraph 1 – subparagraph 2
Annex III – part G – paragraph 1 – subparagraph 2
[ ] will not be produced or preserved since the information provided in the EPOC / EPOC-PR does not allow to identify it.
Amendment 840 #
Proposal for a regulation
Annex III – part G – paragraph 1 – subparagraph 2 a (new)
Annex III – part G – paragraph 1 – subparagraph 2 a (new)
[ ] will not be produced or preserved since one of the grounds for non-recognition or non-execution exists.
Amendment 841 #
Proposal for a regulation
Annex III – part H – title
Annex III – part H – title