Progress: Awaiting Parliament's position in 1st reading
Role | Committee | Rapporteur | Shadows |
---|---|---|---|
Lead | LIBE | SIPPEL Birgit ( S&D) | MELO Nuno ( EPP), KÖRNER Moritz ( Renew), LAGODINSKY Sergey ( Verts/ALE), TARDINO Annalisa ( ID), JAKI Patryk ( ECR), ERNST Cornelia ( GUE/NGL) |
Former Responsible Committee | LIBE | ||
Committee Opinion | IMCO | ||
Former Committee Opinion | IMCO |
Lead committee dossier:
Legal Basis:
TFEU 053-p1, TFEU 062
Legal Basis:
TFEU 053-p1, TFEU 062Subjects
Events
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.
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
- Committee report tabled for plenary, 1st reading: A9-0257/2020
- Amendments tabled in committee: PE644.800
- Committee draft report: PE642.979
- Document attached to the procedure: N9-0022/2020
- Document attached to the procedure: OJ C 032 31.01.2020, p. 0011-0013
- Contribution: COM(2018)0226
- Contribution: COM(2018)0226
- Document attached to the procedure: EUR-Lex
- Document attached to the procedure: SWD(2018)0118
- Document attached to the procedure: EUR-Lex
- Document attached to the procedure: SWD(2018)0119
- Legislative proposal published: COM(2018)0226
- Legislative proposal published: EUR-Lex
- Document attached to the procedure: EUR-Lex SWD(2018)0118
- Document attached to the procedure: EUR-Lex SWD(2018)0119
- Document attached to the procedure: N9-0022/2020 OJ C 032 31.01.2020, p. 0011-0013
- Committee draft report: PE642.979
- Amendments tabled in committee: PE644.800
- Contribution: COM(2018)0226
- Contribution: COM(2018)0226
Amendments | Dossier |
26 |
2018/0107(COD)
2019/12/06
LIBE
26 amendments...
Amendment 10 #
Proposal for a directive Recital 16 (16) The service providers most relevant for gathering evidence in 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 Directive. Providers of electronic communication services are defined in
Amendment 11 #
Proposal for a directive Recital 19 (19) Service providers should notify the Member State
Amendment 12 #
Proposal for a directive Recital 20 (20) The infringement of the obligations to designate a legal representative and to notify and make publicly available the information related thereto should be subject to effective, proportionate and dissuasive sanctions. Under no circumstances should the sanctions determine a ban, permanent or temporary, of service provision. Member States should coordinate their enforcement action where a service provider offers services in several Member States with a view to ensure an equivalent level of sanctions. To ensure a coherent and
Amendment 13 #
Proposal for a directive Recital 22 (22) In order to ensure the application of the Directive in a consistent manner, additional mechanisms for the coordination between Member States should be put in place. For that purpose, Member States should designate a central authority that can provide central authorities in other Member States with information and assistance in the application of the Directive, in particular where enforcement actions under the Directive are considered. This coordination mechanism should ensure that relevant Member States are informed of the intent of a Member State to undertake an enforcement action, including as regards service providers established outside the Union which have failed to designate a legal representative. In addition, Member States should ensure that central authorities can provide each other with assistance in those circumstances, and cooperate with each other where relevant. Cooperation amongst central authorities in the case of an enforcement action may entail the coordination of an enforcement action between competent authorities in different Member States. For the
Amendment 14 #
Proposal for a directive Article 2 – paragraph 1 – point 1 (1) ‘legal representative’ means a legal
Amendment 15 #
Proposal for a directive Article 2 – paragraph 1 – point 2 – introductory part (2) ‘service provider’ means any natural or legal person that provides
Amendment 16 #
Proposal for a directive Article 2 – paragraph 1 – point 3 – introductory part (3) ‘offering services in
Amendment 17 #
Proposal for a directive Article 2 – paragraph 1 – point 3 – point a (a) e
Amendment 18 #
Proposal for a directive Article 2 – paragraph 1 – point 3 – point a a (new) (a a) a significant number of users in one or more Member State(s);
Amendment 19 #
Proposal for a directive Article 2 – paragraph 1 – point 3 – point b (b) having a substantial connection to the Member State referred to in point (a); such a substantial connection to the Member State(s) is considered to exist where the service provider has an establishment in the Union; in the absence of such establishment, substantial connection is identified on the basis of the existence of a significant number of users in one or more Member States, or the targeting of activities towards one or more Member States which can be determined on the basis of all relevant circumstances such as, among others, the use of a language or currency used in that Member State or the availability of an 'app' in the relevant national app store; a substantial connection is also to be assumed where a service provider directs its activities towards one or more Member States as set out in Article 17 (1)(c) of Regulation 1215/2012
Amendment 20 #
Proposal for a directive Article 2 – paragraph 1 – point 3 – point b (b)
Amendment 21 #
Proposal for a directive Article 2 – paragraph 1 – point 4 (4) ‘establishment’ means either the actual pursuit of an economic activity for an indefinite period through a stable infrastructure from where the
Amendment 22 #
Proposal for a directive Article 3 – paragraph 2 2. Where a service provider is not established in the Union, Member States shall ensure that such service provider offering services on their territory designates at least one legal representative in the Union for the receipt of, compliance with and enforcement of decisions and orders issued by competent authorities of
Amendment 23 #
Proposal for a directive Article 3 – paragraph 4 4. Service providers shall be free to designate additional legal representatives
Amendment 24 #
Proposal for a directive Article 4 – paragraph 1 1. Member States shall ensure that, upon designation of its legal representative in accordance with Article 3(1)
Amendment 25 #
Proposal for a directive Article 4 – paragraph 2 2. 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
Amendment 26 #
Proposal for a directive Article 6 – paragraph 3 3. Member States shall ensure that their central authorities
Amendment 4 #
Proposal for a directive Recital 6 (6) To avoid such fragmentation and to ensure that undertakings active in the internal market are subject to the same or similar obligations, the Union has adopted a number of legal acts in related fields such as data protection
Amendment 5 #
Proposal for a directive Recital 7 (7) By setting out harmonised rules on the legal representation of certain service providers in the Union for receipt of, compliance with and enforcement of decisions issued by competent authorities in the Member States for the purposes of gathering evidence in criminal proceedings, the existing obstacles to the free provision of services should be removed, as well as
Amendment 6 #
Proposal for a directive Recital 9 (9) When transposing this Directive, Member States sh
Amendment 7 #
Proposal for a directive Recital 12 (12) The determination whether a service provider offers services in the Union requires an assessment whether the service provider enables legal or natural persons in the Union to use its services
Amendment 8 #
Proposal for a directive Recital 13 (13) A substantial connection to the Union should
Amendment 9 #
Proposal for a directive Recital 14 (14) Service providers obliged to designate a legal representative should be able to choose to that effect an existing establishment in a Member State, be it a corporate body or a branch, agency, office or a main seat or headquarters, and also more than one legal representative. Nevertheless, a corporate group should not be forced to designate multiple representatives, one for each undertaking
source: 644.800
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