BETA


2018/0107(COD) Electronic evidence in criminal proceedings: legal representatives directive

Progress: Awaiting Parliament's position in 1st reading

RoleCommitteeRapporteurShadows
Lead LIBE SIPPEL Birgit (icon: S&D S&D) MELO Nuno (icon: EPP EPP), KÖRNER Moritz (icon: Renew Renew), LAGODINSKY Sergey (icon: Verts/ALE Verts/ALE), TARDINO Annalisa (icon: ID ID), ĎURIŠ NICHOLSONOVÁ Lucia (icon: ECR ECR), ERNST Cornelia (icon: GUE/NGL GUE/NGL)
Former Responsible Committee LIBE SIPPEL Birgit (icon: S&D S&D)
Committee Opinion IMCO
Former Committee Opinion IMCO
Lead committee dossier:
Legal Basis:
TFEU 053-p1, TFEU 062

Events

2020/12/16
   EP - Committee decision to enter into interinstitutional negotiations confirmed by plenary (Rule 71)
2020/12/14
   EP - Committee decision to enter into interinstitutional negotiations announced in plenary (Rule 71)
2020/12/11
   EP - Committee report tabled for plenary, 1st reading
Details

The Committee on Civil Liberties, Justice and Home Affairs adopted the report by Birgit SIPPEL (S&D, DE) on the proposal for a directive of the European Parliament and of the Council

laying down harmonised rules on the appointment of legal representatives for the purpose of gathering evidence in criminal proceedings.

The committee recommended that the European Parliament’s position adopted at first reading under the ordinary legislative procedure should reject the Commission proposal.

As a reminder, the Commission proposed two instruments, this proposal for a Directive laying down harmonised rules on the appointment of legal representatives for the purpose of gathering evidence in criminal proceedings and the proposal for a Regulation on European Production and Preservation Orders for electronic evidence in criminal matters.

However, a discrepancy between the two instruments exists.

The proposed Directive would bind all EU Member States to introduce a legal representative, even those not participating in the legal instruments adopted within the scope of Title V, Chapter 4, of the Treaty on the

Functioning of the European Union.

In addition, the proposal of the Commission seems not only to introduce such a legal representative for the functioning of the proposed Regulation, but to possibly also use it for other future instruments. In that regard, the proposed Directive overreaches its goal and raises serious issues with its legal basis, namely the Articles 53 and 62 TFEU.

Consequently, only those Member States participating in the proposed Regulation should be bound by the obligation as regards to the appointment of legal representatives. Therefore, the relevant content of the proposed Directive was directly integrated into the proposed Regulation, as a flanking measure to mutual recognition instruments under Article 82 TFEU.

The committee called on the European Parliament to reject this proposal and on the Commission to withdraw it.

Documents
2020/12/07
   EP - Vote in committee, 1st reading
2020/12/07
   EP - Committee decision to open interinstitutional negotiations with report adopted in committee
2019/12/09
   EP - Amendments tabled in committee
Documents
2019/11/11
   EP - Committee draft report
Documents
2019/11/06
   EDPS - Document attached to the procedure
2019/10/21
   EP - Committee referral announced in Parliament, 1st reading
2019/09/04
   EP - SIPPEL Birgit (S&D) appointed as rapporteur in LIBE
2018/09/06
   PT_PARLIAMENT - Contribution
Documents
2018/08/17
   CZ_SENATE - Contribution
Documents
2018/05/31
   EP - Committee referral announced in Parliament, 1st reading
2018/05/24
   EP - SIPPEL Birgit (S&D) appointed as rapporteur in LIBE
2018/04/18
   EC - Document attached to the procedure
2018/04/18
   EC - Document attached to the procedure
2018/04/17
   EC - Legislative proposal
Details

PURPOSE: to ensure that a service provider offering services in the Union designates legal representation in the Union for the receipt of decisions and orders issued by Member States for the purpose of gathering evidence in criminal proceedings.

PROPOSED ACT: Directive of the European Parliament and of the Council.

ROLE OF THE EUROPEAN PARLIAMENT: the European Parliament decides in accordance with the ordinary legislative procedure on an equal footing with the Council.

BACKGROUND: online service providers such as electronic communications services or social networks are important drivers of innovation and growth in the digital economy. However, these services can also be misused as tools to commit or facilitate crimes, including serious crimes such as terrorist attacks. When that happens, these services and applications often are the only place where investigators can find leads to determine who committed a crime and to obtain evidence that can be used in court.

Many criminal investigations include a cross-border request to obtain electronic evidence held by service providers based in another Member State or outside the EU . To obtain such data, judicial cooperation and mutual legal assistance is needed. However, the process is slow and cumbersome at present. In the absence of a general requirement for service providers to ensure a physical presence within the territory of the Union, Member States have taken steps at national level to ensure compliance with national legal obligations. This includes measures for requiring service providers to obtain electronic evidence that is of relevance to criminal proceedings. To that end, some Member States have adopted legislation imposing mandatory legal representation within their own territory, for a number of service providers offering services in that territory. Such requirements create obstacles to the free provision of services within the internal market. Avoiding fragmentation of the market entails setting out harmonised rules on the legal representation in the Union of certain service providers.

IMPACT ASSESSMENT: four main policy options were considered besides the baseline scenario of taking no option. The impact assessment revealed that legislative options requiring service providers offering services in the EU to nominate a legal representative in the Union would add clear value compared to the other options.

CONTENT: the aim of the proposal is to lay down rules on the legal representation in the Union of certain service providers of telecommunications and electronic communication services for the purpose of gathering evidence in criminal proceedings .

The type of obligations requested from service providers may take several forms, such as: (i) receiving an order in criminal proceedings from a prosecutor or a judge with legal consequences, (ii) providing data needed in those criminal proceedings, (iii) taking certain measures for data preservation in criminal proceedings or being addressed with an enforcement procedure in case of non-compliance.

Member States shall not put additional obligations on service providers, such as obliging them to establish a legal representative in their own territory instead of anywhere in the Union where they offer services. Harmonised rules on legal representation should not limit the powers given under Union and national law to competent authorities to address service providers established on their territory. In such cases, if national authorities decide to address their orders directly to the establishment of the service provider, the responsibility of the legal representative as set out in the Directive does not apply.

Service provider : the following types of service providers fall under the scope of the proposed Directive: (i) providers of electronic communications services; (ii) providers of information society services that store data as part of the service provided to the user (including social networks such as Twitter and Facebook); (iii) online marketplaces and other hosting service providers; and (iv) providers of names and numbering services for the internet.

Legal representatives:

Service providers established in the Union have to designate at least one legal representative in the Union, more specifically in a Member State where they offer services or are established. Service providers that are not established in the Union should designate a legal representative in one of the Member States where they offer services. Service providers offering services in Member States participating in a judicial cooperation instrument under Title V of the Treaty (in which only some Member States participate) are required to designate a legal representative in one of them. These instruments include the Directive on the European Investigation Order and the Mutual Legal Assistance Convention of 2000. The European Production Order will add to this legal regime (Please see COD/2018/0108).

Liability: Member States have to ensure in national law that a designated legal representative can be held liable for non-compliance, without prejudice to the liability of service provider itself. Service providers should not be able to claim they are not responsible for the non-compliance of their legal representative. Nor should the legal representative be able to exculpate himself by claiming for example he is not empowered to deliver data.

Coordination mechanism: to ensure a coherent approach, the proposed directive provides for a coordination mechanism on the basis of central authorities designated by Member States . This will enable Member States to exchange information, provide for assistance and cooperate in their enforcement approach, e.g. by identifying the most appropriate Member State to take action in a given case of non-compliance.

Documents

AmendmentsDossier
26 2018/0107(COD)
2019/12/06 LIBE 26 amendments...
source: 644.800

History

(these mark the time of scraping, not the official date of the change)

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        • date: 2018-04-17T00:00:00 type: Legislative proposal published body: EC docs: url: http://www.europarl.europa.eu/RegData/docs_autres_institutions/commission_europeenne/com/2018/0226/COM_COM(2018)0226_EN.pdf title: COM(2018)0226 url: https://eur-lex.europa.eu/smartapi/cgi/sga_doc?smartapi!celexplus!prod!DocNumber&lg=EN&type_doc=COMfinal&an_doc=2018&nu_doc=0226 title: EUR-Lex summary: PURPOSE: to ensure that a service provider offering services in the Union designates legal representation in the Union for the receipt of decisions and orders issued by Member States for the purpose of gathering evidence in criminal proceedings. PROPOSED ACT: Directive of the European Parliament and of the Council. ROLE OF THE EUROPEAN PARLIAMENT: the European Parliament decides in accordance with the ordinary legislative procedure on an equal footing with the Council. BACKGROUND: online service providers such as electronic communications services or social networks are important drivers of innovation and growth in the digital economy. However, these services can also be misused as tools to commit or facilitate crimes, including serious crimes such as terrorist attacks. When that happens, these services and applications often are the only place where investigators can find leads to determine who committed a crime and to obtain evidence that can be used in court. Many criminal investigations include a cross-border request to obtain electronic evidence held by service providers based in another Member State or outside the EU . To obtain such data, judicial cooperation and mutual legal assistance is needed. However, the process is slow and cumbersome at present. In the absence of a general requirement for service providers to ensure a physical presence within the territory of the Union, Member States have taken steps at national level to ensure compliance with national legal obligations. This includes measures for requiring service providers to obtain electronic evidence that is of relevance to criminal proceedings. To that end, some Member States have adopted legislation imposing mandatory legal representation within their own territory, for a number of service providers offering services in that territory. Such requirements create obstacles to the free provision of services within the internal market. Avoiding fragmentation of the market entails setting out harmonised rules on the legal representation in the Union of certain service providers. IMPACT ASSESSMENT: four main policy options were considered besides the baseline scenario of taking no option. The impact assessment revealed that legislative options requiring service providers offering services in the EU to nominate a legal representative in the Union would add clear value compared to the other options. CONTENT: the aim of the proposal is to lay down rules on the legal representation in the Union of certain service providers of telecommunications and electronic communication services for the purpose of gathering evidence in criminal proceedings . The type of obligations requested from service providers may take several forms, such as: (i) receiving an order in criminal proceedings from a prosecutor or a judge with legal consequences, (ii) providing data needed in those criminal proceedings, (iii) taking certain measures for data preservation in criminal proceedings or being addressed with an enforcement procedure in case of non-compliance. Member States shall not put additional obligations on service providers, such as obliging them to establish a legal representative in their own territory instead of anywhere in the Union where they offer services. Harmonised rules on legal representation should not limit the powers given under Union and national law to competent authorities to address service providers established on their territory. In such cases, if national authorities decide to address their orders directly to the establishment of the service provider, the responsibility of the legal representative as set out in the Directive does not apply. Service provider : the following types of service providers fall under the scope of the proposed Directive: (i) providers of electronic communications services; (ii) providers of information society services that store data as part of the service provided to the user (including social networks such as Twitter and Facebook); (iii) online marketplaces and other hosting service providers; and (iv) providers of names and numbering services for the internet. Legal representatives: Service providers established in the Union have to designate at least one legal representative in the Union, more specifically in a Member State where they offer services or are established. Service providers that are not established in the Union should designate a legal representative in one of the Member States where they offer services. Service providers offering services in Member States participating in a judicial cooperation instrument under Title V of the Treaty (in which only some Member States participate) are required to designate a legal representative in one of them. These instruments include the Directive on the European Investigation Order and the Mutual Legal Assistance Convention of 2000. The European Production Order will add to this legal regime (Please see COD/2018/0108). Liability: Member States have to ensure in national law that a designated legal representative can be held liable for non-compliance, without prejudice to the liability of service provider itself. Service providers should not be able to claim they are not responsible for the non-compliance of their legal representative. Nor should the legal representative be able to exculpate himself by claiming for example he is not empowered to deliver data. Coordination mechanism: to ensure a coherent approach, the proposed directive provides for a coordination mechanism on the basis of central authorities designated by Member States . This will enable Member States to exchange information, provide for assistance and cooperate in their enforcement approach, e.g. by identifying the most appropriate Member State to take action in a given case of non-compliance.
        • date: 2018-05-31T00:00:00 type: Committee referral announced in Parliament, 1st reading/single reading body: EP
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        procedure/subject
        Old
        • 2.40 Free movement of services, freedom to provide
        • 3.30.25 International information networks and society, internet
        • 7.40.04 Judicial cooperation in criminal matters
        New
        2.40
        Free movement of services, freedom to provide
        3.30.25
        International information networks and society, internet
        7.40.04
        Judicial cooperation in criminal matters
        activities/1
        date
        2018-05-31T00:00:00
        body
        EP
        type
        Committee referral announced in Parliament, 1st reading/single reading
        committees
        committees/1/shadows
        • group: EPP name: DATI Rachida
        • group: ECR name: DALTON Daniel
        • group: ALDE name: IN 'T VELD Sophia
        • group: GUE/NGL name: ERNST Cornelia
        • group: Verts/ALE name: FRANZ Romeo
        • group: EFD name: CORRAO Ignazio
        procedure/dossier_of_the_committee
        LIBE/8/12852
        procedure/stage_reached
        Old
        Preparatory phase in Parliament
        New
        Awaiting committee decision
        activities/0/docs/0/text
        • PURPOSE: to ensure that a service provider offering services in the Union designates legal representation in the Union for the receipt of decisions and orders issued by Member States for the purpose of gathering evidence in criminal proceedings.

          PROPOSED ACT: Directive of the European Parliament and of the Council.

          ROLE OF THE EUROPEAN PARLIAMENT: the European Parliament decides in accordance with the ordinary legislative procedure on an equal footing with the Council.

          BACKGROUND: online service providers such as electronic communications services or social networks are important drivers of innovation and growth in the digital economy. However, these services can also be misused as tools to commit or facilitate crimes, including serious crimes such as terrorist attacks. When that happens, these services and applications often are the only place where investigators can find leads to determine who committed a crime and to obtain evidence that can be used in court.

          Many criminal investigations include a cross-border request to obtain electronic evidence held by service providers based in another Member State or outside the EU. To obtain such data, judicial cooperation and mutual legal assistance is needed. However, the process is slow and cumbersome at present. In the absence of a general requirement for service providers to ensure a physical presence within the territory of the Union, Member States have taken steps at national level to ensure compliance with national legal obligations. This includes measures for requiring service providers to obtain electronic evidence that is of relevance to criminal proceedings. To that end, some Member States have adopted legislation imposing mandatory legal representation within their own territory, for a number of service providers offering services in that territory. Such requirements create obstacles to the free provision of services within the internal market. Avoiding fragmentation of the market entails setting out harmonised rules on the legal representation in the Union of certain service providers.

          IMPACT ASSESSMENT: four main policy options were considered besides the baseline scenario of taking no option. The impact assessment revealed that legislative options requiring service providers offering services in the EU to nominate a legal representative in the Union would add clear value compared to the other options.

          CONTENT: the aim of the proposal is to lay down rules on the legal representation in the Union of certain service providers of telecommunications and electronic communication services for the purpose of gathering evidence in criminal proceedings.

          The type of obligations requested from service providers may take several forms, such as: (i) receiving an order in criminal proceedings from a prosecutor or a judge with legal consequences, (ii) providing data needed in those criminal proceedings, (iii) taking certain measures for data preservation in criminal proceedings or being addressed with an enforcement procedure in case of non-compliance.

          Member States shall not put additional obligations on service providers, such as obliging them to establish a legal representative in their own territory instead of anywhere in the Union where they offer services. Harmonised rules on legal representation should not limit the powers given under Union and national law to competent authorities to address service providers established on their territory. In such cases, if national authorities decide to address their orders directly to the establishment of the service provider, the responsibility of the legal representative as set out in the Directive does not apply.

          Service provider: the following types of service providers fall under the scope of the proposed Directive: (i) providers of electronic communications services; (ii) providers of information society services that store data as part of the service provided to the user (including social networks such as Twitter and Facebook); (iii) online marketplaces and other hosting service providers; and (iv) providers of names and numbering services for the internet.

          Legal representatives:

          • Service providers established in the Union have to designate at least one legal representative in the Union, more specifically in a Member State where they offer services or are established.
          • Service providers that are not established in the Union should designate a legal representative in one of the Member States where they offer services.
          • Service providers offering services in Member States participating in a judicial cooperation instrument under Title V of the Treaty (in which only some Member States participate) are required to designate a legal representative in one of them. These instruments include the Directive on the European Investigation Order and the Mutual Legal Assistance Convention of 2000. The European Production Order will add to this legal regime (Please see COD/2018/0108).

          Liability: Member States have to ensure in national law that a designated legal representative can be held liable for non-compliance, without prejudice to the liability of service provider itself. Service providers should not be able to claim they are not responsible for the non-compliance of their legal representative. Nor should the legal representative be able to exculpate himself by claiming for example he is not empowered to deliver data.

          Coordination mechanism: to ensure a coherent approach, the proposed directive provides for a coordination mechanism on the basis of central authorities designated by Member States. This will enable Member States to exchange information, provide for assistance and cooperate in their enforcement approach, e.g. by identifying the most appropriate Member State to take action in a given case of non-compliance.

        committees/1/date
        2018-05-24T00:00:00
        committees/1/rapporteur
        • group: S&D name: SIPPEL Birgit
        procedure/Mandatory consultation of other institutions
        European Economic and Social Committee
        activities
        • date: 2018-04-17T00:00:00 docs: url: http://www.europarl.europa.eu/RegData/docs_autres_institutions/commission_europeenne/com/2018/0226/COM_COM(2018)0226_EN.pdf title: COM(2018)0226 type: Legislative proposal published celexid: CELEX:52018PC0226:EN type: Legislative proposal published body: EC commission: DG: url: http://ec.europa.eu/info/departments/justice-and-consumers_en title: Justice and Consumers Commissioner: JOUROVÁ Věra
        committees
        • body: EP responsible: False committee_full: Internal Market and Consumer Protection committee: IMCO
        • body: EP responsible: True committee_full: Civil Liberties, Justice and Home Affairs committee: LIBE
        links
        other
        • body: EC dg: url: http://ec.europa.eu/info/departments/justice-and-consumers_en title: Justice and Consumers commissioner: JOUROVÁ Věra
        procedure
        reference
        2018/0107(COD)
        title
        Appointment of legal representatives for the purpose of gathering evidence in criminal proceedings
        legal_basis
        stage_reached
        Preparatory phase in Parliament
        instrument
        Directive
        subtype
        Legislation
        type
        COD - Ordinary legislative procedure (ex-codecision procedure)
        subject