Proposal for a regulation
Article 10 a (new)
Article 10 a Grounds for non-recognition or non- execution 1. Without prejudice to Article 1(2), recognition or execution of the EPOC or EPOC-PR shall be refused by the executing authority, where: (a) the execution of the European Production Order or European Preservation Order would be contrary to the principle of ne bis in idem; (b) there are substantial grounds to believe that the execution of the European Production Order or European Preservation Order would be incompatible with Member State's obligations in accordance with Article 6 TEU and the Charter; or (c) there is an immunity or a privilege, including an obligation of professional secrecy and lawyer-client privilege, under the law of the executing State, or, where applicable, the affected State; 2. In addition to paragraph 1, recognition or execution of the EPOC or EPOC-PR may be refused by the executing authority, where: (a) the conditions for issuing a European Production Order or European Preservation Order, as laid down in Articles 5 and 6 of this Regulation are not fulfilled; (b) the EPOC or the EPOC-PR is incomplete or manifestly incorrect, in form or content, and has not been completed or corrected following the consultations referred to in Article 9 (3) and (4) and Article 10 (4) and (5) of this Regulation; (c) the execution of the European Production Order or European Preservation Order would harm essential national security interests, jeopardise the source of the information or involve the use of classified information relating to specific intelligence activities; (d) the European Production Order or European Preservation Order relates to a criminal offence which is alleged to have been committed outside the territory of the issuing State and the law of the executing State does not allow prosecution for the same offences when committed outside its territory; where the EPOC or the EPOC-PR relates to a criminal offence which is alleged to have been committed wholly or partially on the territory of the executing State; (e) the conduct for which the EPOC or the EPOC-PR has been issued does not constitute an offence under the law of the executing State, unless it concerns an offence listed within the categories of offences set out in Annex IIIa, as indicated by the issuing authority in the EPOC or the EPOC-PR, if it is punishable in the issuing State by a custodial sentence or a detention order for a maximum period of at least three years; (f) the execution of the European Production Order or European Preservation Order is restricted under the law of the executing State to a list or category of offences or to offences punishable by a higher threshold; or (g) compliance with the European Production Order or the European Preservation Order would conflict with applicable laws of a third country that prohibits disclosure of the data concerned in accordance with national law of the executing state. 3. As soon as it is clear that the person whose data is sought or the person bound by an obligation of professional secrecy or lawyer-client privilege, is residing neither in the issuing State nor in the executing State, and the respective affected authority believes that one of the grounds listed in Article 10a exists, it shall immediately inform the executing authority, based on a reasoned opinion. The executing authority shall take that reasoned opinion duly into account. 4. Points (e) and (f) of paragraph 2 shall not apply to subscriber data and IP addresses. 5. Point (g) of paragraph 1 shall be applied in accordance with to the procedure set out in Article 15. 6. Where the European Production Order or European Preservation Order concerns an offence in connection with taxes or duties, customs and exchange, the executing authority shall not refuse recognition or execution on the ground that the law of the executing State does not impose the same kind of tax or duty or does not contain a tax, duty, customs and exchange regulation of the same kind as the law of the issuing State. 7. In the cases referred to in paragraphs 1 and 2 of this Article, before deciding not to recognise or not to execute a European Production Order or European Preservation Order, either in whole or in part, the executing authority shall consult the issuing authority, by any appropriate means, and shall, where appropriate, request the issuing authority to supply any necessary information without delay. 8. In the case referred to in point (c) of paragraph 1 and where power to waive the privilege or immunity lies with an authority of the executing State, the executing authority shall request it to exercise that power forthwith. Where power to waive the privilege or immunity lies with an authority of another State or international organisation, it shall be for the issuing authority to request the authority concerned to exercise that power. 9. The executing authority shall inform the issuing authority about the use of any of the grounds for non-recognition or non-execution as listed in paragraphs 1 and 2 of this Article, by using the form set out in Annex III.