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Document round-up: Council discussions on European Production and Preservation Orders for electronic evidence in criminal matters
26.9.18
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Discussions are ongoing in the Council on proposals for new rules on cross-border access to electronic evidence, which are intended to make it easier for criminal justice agencies in one Member State to obtain material from telecommunications service providers located in one or more other Member States. The proposals contain some controversial provisions and the documents from the Council reflect some of these issues.

19 September 2018: NOTE from: Presidency to: delegations: Proposal for a Regulation of the European Parliament and of the Council on European production and preservation orders for electronic evidence in criminal matters - examination of a revised text (12113/18, LIMITE, pdf):

"Delegations will find in Annex a revised version of the above proposal where the new text has been marked with bold and underlined and the deleted with strikethrough.

The Presidency invites delegations to consider the amendments made in the text and the issues marked in footnotes in view of the discussion at the COPEN Working Party meeting on 24-25 September 2018.

In addition, the Presidency would like to have a general exchange of views on the notification system proposed at the last meeting, namely a tandem procedure with the enforcing state.

The proposals submitted by Germany on Articles 5, 11 and 17 will be discussed together with the respective Articles in the Annex."

11 September 2018: NOTE from: Presidency to: CATS: Proposal for a Regulation on European production and preservation orders for electronic evidence in criminal matters - selected issues for discussion (11954/18, LIMITE, pdf):

"The review procedure stipulated in Articles 15 and 16 of the draft Regulation on European Production and Preservation Orders for electronic evidence in criminal matters has been subject to extensive discussions during the COPEN Working Party meetings held in the May...

Given the number of comments received questioning the efficiency of the proceeding provided for in particular in Article 15(3) and (4) and the legal concerns raised so far the Presidency considers it necessary to separate this issue from the examination of the rest of the proposal and have an in-depth debate. To facilitate the debate the Presidency would like to propose a number of possible options to deal with the conflicting obligations for service providers."

3 August 2018: NOTE from: General Secretariat of the Council to: Delegations: Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on European Production and Preservation Orders for electronic evidence in criminal matters (11381/18, LIMITE, pdf)

"Delegations will find in the Annex some brief explanations on Articles 9, 10, 11, 14, 17 and 18 of the draft Regulation on European Production and Preservation Order as prepared by the Presidency together with some questions to foster the discussions during the COPEN (E-evidence) Working Party meeting on 5 and 6 September 2018."

2 August 2018: Opinion of the European Economic and Social Committee (11533/18, pdf):

"Delegations will find in Annex an Opinion of the European Economic and Social Committee on the abovementioned proposals."

24 July 2018: Letter from the Permanent Representation of Ireland opt-in the instrument (11375/18, pdf):

"Delegations will find attached a letter from the Permanent Representantion of Ireland to the European Union informing that it wishes to take part in the adoption and application on the Proposal mentioned above."

28 June 2018: 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 - revised text (9729/1/18 REV 1, LIMITE, pdf):

"Delegations will find in Annex a revised version of the above proposal for a Directive as prepared by the Bulgarian Presidency on the basis of the comments and observations expressed during the COPEN WP meeting of 29-30 May 2018. The discussions of the revised text started in the COPEN WP meeting of 13 June 2018 and following the request of certain delegations will continue in the meeting of 6 July as planned by the AT Presidency."

26 June 2018: NOTE from: General Secretariat of the Council to: Council: Proposal for a Regulation of the European Parliament and of the Council on European production and preservation orders for electronic evidence in criminal matters - compilation of Member States comments (10470/18, LIMITE, pdf):

"Delegations will find in the Annex comments from Member States on doc. 9732/18 - discussion paper on selected provisions - of 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."

12 June 2018: NOTE from: Presidency to: Delegations: Proposal for a Regulation of the European Parliament and of the Council on European production and preservation orders for electronic evidence in criminal matters - discussion paper on selected provisions (9732/18, LIMITE, pdf):

"On the basis of the comments and observations made during the COPEN WP meetings of 7-8 May and 29-30 May 2018 on the above proposed Regulation, the Presidency has selected a number of provisions for a detailed examination:

- firstly the procedures for execution and enforcement of a European production order, set out in Articles 9 and 14 respectively,

- secondly, following Member States' requests in view of the relationship of the proposal to the US CLOUD Act - the review clause provided for in Article 15.

To steer the discussion, the Presidency has provided some brief explanations set out in the Annex."

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