Regulation (EU) 2023/1543 on European Production Orders and European Preservation Orders for electronic evidence in criminal proceedings and for the execution of custodial sentences following criminal proceedings

Author (Corporate) ,
Series Title
Series Details L 191, Pages 118-180
Publication Date 28/07/2023
Content Type , , ,

Summary:

Regulation (EU) 2023/1543 - adopted by the co-legislators on 12 July 2023 - concerning European Production Orders and European Preservation Orders for electronic evidence (e-evidence) in criminal proceedings and for the execution of custodial sentences following criminal proceedings.

Further information:

The use of web-based communication tools have become a commonplace across the world. While their economic and social benefit is significant, they can also be misused as tools to commit or facilitate crimes. When that happens, these services and apps are often the only place where investigators can find leads to determine who committed a crime and obtain evidence that can be used in court.

Given the borderless nature of the internet, such services can be provided from anywhere in the world and do not necessarily require physical infrastructure, a corporate presence or staff in the Member States of the European Union (EU) where the services are offered or in the internal market as a whole. They also do not require a specific location for the storage of data. As a result, authorities across the EU require access to data that might serve as evidence and that is store outside their country and/or by service providers in other Member States or third countries.

This Regulation lays down the rules under which an authority of a Member State of the European Union (EU), in criminal proceedings, may issue a European Production Order or a European Preservation Order and thereby order a service provider offering services in the EU and established in another Member States (or represented by a legal representative), to produce or preserve electronic evidence regardless of the location of the data. The issuing of these Orders may also be requested by a suspect or an accused person, or by a lawyer on that person's behalf.

Mechanisms for cooperation between countries were developed over the decades. Despite regular reforms, these mechanisms are subject to increasing pressure from the growing need for timely cross-border access to electronic evidence. In response, several countries resorted to expanding their national tools, which resulted in fragmentation. This has generated legal uncertainty and conflicting obligations, and has raised questions as regards the protection of fundamental right and procedural safeguards for persons affected by such requests.

Seeking to adapt cooperation mechanisms to the digital age, the draft law for this Act was adopted by the European Commission on 17 April 2018. It was part of a legislative package aimed at strengthening cross-border cooperation tackle serious crime. The Council of the European Union adopted its general approach on 7 December 2018. The plenary of the European Parliament endorsed a negotiating position on 16 December 2020. An informal agreement between the co-legislators on a compromise text for this file was reached on 29 November 2022. This was formally confirmed by the Parliament on 13 June 2023, followed by the Council on 27 June. The Act was signed by the co-legislators on 12 July 2023 and published in the Official Journal on 28 July 2023.

Source Link http://data.europa.eu/eli/reg/2023/1543/oj
Related Links
Commentary and Analysis
eucrim: News, 29/06/2018: Commission Proposes Legislative Framework for E-Evidence https://eucrim.eu/news/commission-proposes-legislative-framework-e-evidence/
European Parliamentary Research Service (EPRS): Briefing, 13/07/2018: European production and preservation orders and the appointment of legal representatives for gathering electronic evidence - Initial Appraisal of a European Commission Impact Assessment https://www.europarl.europa.eu/thinktank/en/document/EPRS_BRI(2018)621844
eucrim: Journal 1/2020, 03/07/2020: The Proposal on Electronic Evidence in the European Union https://doi.org/10.30709/eucrim-2020-004
European Parliamentary Research Service (EPRS): Briefing, 22/03/2021: Electronic evidence in criminal matters https://www.europarl.europa.eu/thinktank/en/document/EPRS_BRI(2021)690522
European Digital Rights (EDRi): Resources, 22/04/2021: E-Evidence: trilogues kick off on safeguards vs. efficiency https://edri.org/our-work/e-evidence-trilogues-kick-off-on-safeguards-vs-efficiency/
European Broadcasting Union (EBU): News, 04/03/2022: eEvidence: the EBU reiterates its support for the European Parliament approach ahead of next Council's meeting https://www.ebu.ch/news/2022/03/eevidence-the-ebu-reiterates-its-support-for-the-european-parliament-approach-ahead-of-next-councils-meeting
Statewatch: News, 17/03/2022: EU: E-evidence: "the Parliament has moved substantially towards the Council position" https://www.statewatch.org/news/2022/march/eu-e-evidence-the-parliament-has-moved-substantially-towards-the-council-position/
European Broadcasting Union (EBU): News, 05/05/2022: eEvidence proposal: Council must do more to reach a compromise https://www.ebu.ch/news/2022/05/eevidence-proposal-council-must-do-more-to-reach-a-compromise
Statewatch: News, 06/07/2022: EU: End game approaching for e-evidence negotiations, says French Presidency https://www.statewatch.org/news/2022/july/eu-end-game-approaching-for-e-evidence-negotiations-says-french-presidency/
International Association of Privacy Professionals (IAPP): News, 11/08/2022: A view from Brussels: The latest on European Commission proposals for children's online safety, electronic evidence https://iapp.org/news/a/a-view-from-brussels-the-latest-on-european-commission-proposals-for-childrens-online-safety-electronic-evidence/
University of London: IALS Information Law and Policy Centre: Blog, 24/01/2023: It is a Long Way to … E-Evidence: EU Reforms in the Collection of Electronic Evidence – Part 1 https://infolawcentre.blogs.sas.ac.uk/2023/01/24/it-is-a-long-way-to-e-evidence-eu-reforms-in-the-collection-of-electronic-evidence-part-1/
University of London: IALS Information Law and Policy Centre: Blog, 26/02/2023: It is a Long Way to… E-Evidence: EU Reforms in the Collection of Electronic Evidence Part 2 – The Role of Service Providers https://infolawcentre.blogs.sas.ac.uk/2023/02/26/it-is-a-long-way-to-e-evidence-eu-reforms-in-the-collection-of-electronic-evidence-part-2-the-role-of-service-providers/
European Parliamentary Research Service (EPRS): At a Glance, 07/06/2023: Cross-border access to electronic evidence https://www.europarl.europa.eu/thinktank/en/document/EPRS_ATA(2023)747924
Internet & Jurisdiction Policy Network: News, 15/06/2023: Analysis: EU’s Recently Adopted E-Evidence Regulation https://www.internetjurisdiction.net/news/analysis-eus-recently-adopted-e-evidence-regulation

News
EurActiv, 26/05/2021: e-Evidence: controversy continues in trilogue discussions https://www.euractiv.com/section/data-protection/news/e-evidence-regulation-controversy-continues-in-trilogue-discussions/
EurActiv, 29/06/2022: EU co-legislators agree on ‘key elements’ of electronic evidence package https://www.euractiv.com/section/digital/news/eu-co-legislators-agree-on-key-elements-of-electronic-evidence-package/
EurActiv, 23/11/2022: Czech presidency seeks closure for electronic evidence package https://www.euractiv.com/section/digital/news/czech-presidency-seeks-closure-for-electronic-evidence-package/
EurActiv, 30/11/2022: EU settles rules for accessing electronic evidence across borders https://www.euractiv.com/section/data-protection/news/eu-settles-rules-for-accessing-electronic-evidence-across-borders/

Official
EUR-LEX: COM(2018)225: Proposal for a Regulation on European Production and Preservation Orders for electronic evidence in criminal matters https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=COM:2018:225:FIN
EUR-LEX: SWD(2018)118: Staff Working Document accompanying the Proposal - Impact assessment https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=SWD:2018:118:FIN
EUR-LEX: SWD(2018)119: Staff Working Document accompanying the Proposal - Executive summary of the impact assessment https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=SWD:2018:119:FIN
European Parliament: Legislative Observatory: Procedure File for Proposal on Electronic evidence regulation: European production and preservation orders for electronic evidence in criminal matters (2018/0108(COD)) https://oeil.secure.europarl.europa.eu/oeil/popups/ficheprocedure.do?lang=&reference=2018/0108(COD)
European Parliament: Legislative Train Schedule: European Production and Preservation Orders for electronic evidence in criminal matters https://www.europarl.europa.eu/legislative-train/theme-a-new-push-for-european-democracy/file-jd-cross-border-access-to-e-evidence-production-and-preservation-orders
European Commission: Strategy & Policy: E-evidence - cross-border access to electronic evidence https://commission.europa.eu/strategy-and-policy/policies/justice-and-fundamental-rights/criminal-justice/e-evidence-cross-border-access-electronic-evidence_en
General Secretariat of the Council: Policies: Better access to e-evidence to fight crime https://www.consilium.europa.eu/en/policies/e-evidence/
European Commission: Press Release, 17/04/2018: Security Union: Commission facilitates access to electronic evidence https://ec.europa.eu/commission/presscorner/detail/en/IP_18_3343
European Commission: Frequently Asked Questions: New EU rules to obtain electronic evidence (17 April 2018) https://ec.europa.eu/commission/presscorner/detail/en/MEMO_18_3345
Council of the European Union: Press Release, 07/12/2018: Regulation on cross border access to e-evidence : Council agrees its position https://www.consilium.europa.eu/en/press/press-releases/2018/12/07/regulation-on-cross-border-access-to-e-evidence-council-agrees-its-position/
Council of the European Union: Press Release, 25/01/2023: Electronic evidence: Council confirms agreement with the European Parliament on new rules to improve cross-border access to e-evidence https://www.consilium.europa.eu/en/press/press-releases/2023/01/25/electronic-evidence-council-confirms-agreement-with-the-european-parliament-on-new-rules-to-improve-cross-border-access-to-e-evidence/
S&D EP Group: Newsroom, 31/01/2023: E-evidence marks a significant turning point in European police and judicial cooperation https://www.socialistsanddemocrats.eu/newsroom/e-evidence-marks-significant-turning-point-european-police-and-judicial-cooperation
European Parliament: Press Release, 13/06/2023: Electronic evidence: new rules to speed up cross-border criminal investigations https://www.europarl.europa.eu/news/en/press-room/20230609IPR96203/
Council of the European Union: Press Release, 27/06/2023: Council adopts EU laws on better access to electronic evidence https://www.consilium.europa.eu/en/press/press-releases/2023/06/27/council-adopts-eu-laws-on-better-access-to-electronic-evidence/#:~:text=According%20to%20the%20new%20rules,8%20hours%20in%20emergency%20cases.

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