EU-USA: Mutual Legal Assistance Review

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EU-USA: Mutual Legal Assistance Review: Council of the European Union: The EU-USA Agreement on Mutual Legal Assistance (MLA) entered into force on 1 February 2010 and Article 17 requires a Review no later than five years after its entry into force:

- Seminar on the application of the Mutual Legal Assistance and extradition agreements between the European Union and the United States of America - Outcome Report (LIMITED doc no: 9519-16,pdf) Note this also covers extradition. Worth a read, revealing discussions between Member States:

"In terms of refusals, Member States have refused US requests because of issues relating to data protection, death penalty, "fishing expeditions" or logistical problems. Also some identified issues in relation to US application of extraterritorial jurisdiction. The US has refused requests from many MS in relation to probable cause, dual criminality, freedom of expression and de minimis." [emphasis added]

"In relation to the possibility to directly preserve and/or obtain electronic evidence from ESPs [electronic service providers], it was observed that i) for some EU Member States, this is not a viable option to obtain admissible evidence for their criminal proceedings; ii) there is a large and ever growing number of ESPs with different policies on the voluntary disclosure and preservation of data; iii) some ESPs notify users if their data is requested by law enforcement authorities or preserved for them (in that case an MLA request should be issued specifying that the subscriber should not be notified)... It was also observed that i) directly preserving and obtaining from ESPs such data as is possible to obtain in that manner is much more rapid and efficient than going through the MLA channel to do so; ii) directly preserving and obtaining data was the best way to ensure the data is not deleted."

- Review - 5 May 2016 (LIMITE doc no: 9291-16, pdf)

- Review - 13 May 2016 (LIMITE doc no: 8707-16, pdf)

- Review of the 2010 EU-US MLA Agreement - Examination of draft texts (7403-16, pdf)

"According to the survey, the five EU Member States from which the greatest number of requests went to the U.S. in 2014 were Greece, the Netherlands, the Czech Republic, Poland, and Portugal. U.S. records disclose that over the five year period the greatest number of incoming files (potentially with multiple requests) originated from Greece, the Netherlands, the United Kingdom, Spain and Poland.

According to the Commission survey, the number of annual requests sent to the U.S. by individual Member States ranged from several hundred to fewer than 10. That corresponds with U.S. figures. According to the Commission survey, the five EU Member States that received the largest number of requests from the U.S. in 2014 were the Netherlands, Germany, the Czech Republic, Bulgaria and France. The U.S. figures, covering the five year period, show a slightly different pattern, identifying the Netherlands, Germany, the United Kingdom, and France receiving the greatest number of requests."

Background: EU: JHA Council authorises signing of EU-USA agreements on extradition and mutual legal assistance (Statewatch database) and see Full-text of MLA and extradition Agreements.

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