On 18 July the Meijers Committee has published comments on the proposal for a regulation on European Production and Preservation Orders for electronic evidence in criminal matters, the so-called “e-Evidence Regulation”.

The comments are critical:

• The Committee questions the legal basis (article 82 TFEU).
• It is recommended to reconsider the choice for a regulation.
• The scope of the European Production Order includes a very large number of offences, including offences that are not considered to constitute a serious crime. The Committee recommends to reconsider the scope.
• Clarification is needed in regard of the competent issuing authorities.
• Stricter terms for the preservation of data are needed. If the issuing authority has confirmed that a subsequent European Production Order has been ‘launched’, though not yet ‘served’ there is no time limit for preservation of data.
• The proposal lacks clarity on the involvement of private companies. These companies have to assess the refusal grounds; their legal position is unclear. The Meijers Committee takes the viewpoint that court involvement is necessary, because some grounds of refusal aim to protect interests of persons whose data are involved. An independent court is placed in a better position to decide on such grounds than the involved company can ever be, especially where it concerns very small companies such as startups.
• Access to justice is inadequate.

In regard of the last point the Committee writes:

Access to justice
A final point of concern the Meijers Committee wishes to share has already been put forward several times, for instance in the context of the negotiations on the European Public Prosecutor’s Office. It concerns the problem that in the context of cross-border investigations, individuals may lack clear indications of where exactly (in which country, before which court) they have to bring their claims that rights or procedural rules are violated.
It has been argued that such indications are even less clear in cross-border investigations under the European Public Prosecutor’s Office, but the situation becomes even more pressing where – as proposed – judicial authorities can address European Production Orders and European Preservation Orders to service providers’ legal representatives or establishments. Under the proposed mechanism, it is very likely that a situation will arise in which the individual involved – either being a suspect or not – resides in another Member State than both the issuing Member State and the state on which territory the service provider’s legal representative or establishment is placed. Would that not lead to uncertainty under the fundamental rights acquis or otherwise, in which country the individual can lodge a complaint?

It is strongly recommended to clarify this in the proposal. The Meijers Committee underlines the importance of an effective and practical safeguarding of the right of access to justice. In view of that, it must be considered less obvious to only allow individuals to lodge their complaint in either the issuing Member State or in the state from whose territory a company preserved or transmitted the requested data. The Meijers Committee therefore suggests to seriously consider the possibility of explicitly allowing individuals to bring their complaints before a court in their state of residence.

More information: in a previous post (in Dutch but referring to English sources also).