26 Amendments of Olivier CHASTEL related to 2018/0108(COD)
Amendment 383 #
Proposal for a regulation
Recital 55
Recital 55
(55) In addition, during the enforcement procedure and subsequent legal remedy, the addressee may oppose the enforcement of a European Production or Preservation Order on a number of limited grounds, including it not being issued or validated by a competent authority or it being apparent that it manifestly violates the Charter of Fundamental Rights of the European Union or is manifestly abusive. For example, an Order requesting the production of content data pertaining to an undefined class of people in a geographical area or with no link to concrete criminal proceedings would ignore in a manifest way the conditions for issuing a European Production Order.
Amendment 395 #
Proposal for a regulation
Article 1 – paragraph 1
Article 1 – paragraph 1
1. This Regulation lays down the rules under which an authority of a Member State may order a service provider offering services in the Union, to produce or preserve electronic evidence, regardless of the location of data, besides mutual legal assistance procedures or Directive 2014/41/EU of the European Parliament and of the Council of 3 April 2014 regarding the European Investigation Order in criminal matters. This Regulation is without prejudice to the powers of national authorities to compel service providers established or represented on their territory to comply with similar national measures for entirely domestic situations.
Amendment 398 #
Proposal for a regulation
Article 1 – paragraph 2
Article 1 – paragraph 2
2. This Regulation shall not have the effect of modifying the obligation to respect the fundamental rights and legal principles as enshrined in Article 6 of the TEU, including the rights of defence of persons subject to criminal proceedings, and any obligations incumbent on law enforcement or judicial authorities in this respect shall remain unaffected. Any rights of, or obligations incumbent on, service providers concerning the security, encryption, or general and indiscriminate retention of data shall also remain unaffected.
Amendment 460 #
Proposal for a regulation
Article 2 – paragraph 1 – point 15
Article 2 – paragraph 1 – point 15
(15) ‘emergency cases’ means situations where there is an imminent threat to life or physical integrity of a person or to a critical infrastructure as defined in Article 2(a) of Council Directive 2008/114/EC46 . _________________ 46Council Directive 2008/114/EC of 8 December 2008 on the identification and designation of European critical infrastructures and the assessment of the need to improve their protection (OJ L 34523.12.2008. p 75).
Amendment 461 #
Proposal for a regulation
Article 3 – paragraph 1 a (new)
Article 3 – paragraph 1 a (new)
1 a. This Regulation shall not apply to proceedings initiated by the issuing authority for the purpose of providing mutual legal assistance to another Member State or a third country.
Amendment 463 #
Proposal for a regulation
Article 3 – paragraph 2
Article 3 – paragraph 2
2. The European Production Orders and European Produceservation Orders may only be issued for criminal proceedings, both during the pre-trial and trial phase. The Orders may also be issued in proceedings relating to a criminal offence for which a legal person may be held liable or punished in the issuing State.
Amendment 465 #
Proposal for a regulation
Article 3 – paragraph 2 a (new)
Article 3 – paragraph 2 a (new)
2 a. Electronic evidence shall not be used for the purpose of proceedings other than those for which it was obtained in accordance with this Regulation.
Amendment 489 #
Proposal for a regulation
Article 5 – paragraph 2
Article 5 – paragraph 2
2. The European Production Order shall be necessary and proportionate for the purpose of the proceedings referred to in Article 3 (2)limited to data pertaining to individual persons with a direct link to the proceedings referred to in Article 3 (2), be necessary and proportionate for the purpose of those proceedings, and may only be issued if a similar measure would be available for the same criminal offence in a comparable domestic situation in the issuing State.
Amendment 516 #
Proposal for a regulation
Article 5 – paragraph 5 – point e
Article 5 – paragraph 5 – point e
(e) if applicable, the time range requested to be produced, tailored as narrowly as possible;
Amendment 520 #
Proposal for a regulation
Article 5 – paragraph 5 – point i
Article 5 – paragraph 5 – point i
(i) the grounds for the necessity and proportionality of the measure, taking due account of the impact of the measure on the fundamental rights of the person whose data is sought.
Amendment 533 #
Proposal for a regulation
Article 6 – paragraph 3 – point e
Article 6 – paragraph 3 – point e
(e) if applicable, the time range requested to be preserved, tailored as narrowly as possible;
Amendment 534 #
Proposal for a regulation
Article 6 – paragraph 3 – point g
Article 6 – paragraph 3 – point g
(g) the grounds for the necessity and proportionality of the measure, taking due account of the impact of the measure on the fundamental rights of the person whose data is sought.
Amendment 567 #
Proposal for a regulation
Article 8 – paragraph 2 – subparagraph 2
Article 8 – paragraph 2 – subparagraph 2
Amendment 586 #
Proposal for a regulation
Article 9 – paragraph 1
Article 9 – paragraph 1
1. UIn cases where the European Production Order concerns subscriber data or access data, upon receipt of the EPOC, the addressee shall ensure that the requested data is transmitted directly to the issuing authority or the law enforcement authorities as indicated in the EPOC at the latest within 3 days upon receipt of the EPOC, unless the issuing authority indicates reasons for earlier disclosure. In cases where the European Production Order concerns transactional data or content data, upon receipt of the EPOC, the addressee shall ensure that the requested data is transmitted directly to the issuing authority or the law enforcement authorities as indicated in the EPOC at the latest within 10 days upon receipt of the EPOC, unless the issuing authority indicates reasons for earlier disclosure.
Amendment 608 #
Proposal for a regulation
Article 9 – paragraph 3
Article 9 – paragraph 3
3. If tThe addressee canshall not comply with its obligation becauseif the EPOC is incomplete, contains manifest errors or, does not contain sufficient information to execute the EPOC, the addressee shallor is not limited to individual persons. In those cases, the addressee shall notify the enforcing authority and inform the issuing authority referred to in the EPOC without undue delay and ask for clarification, using the Form set out in Annex III. It shall inform the issuing authority whether an identification and preservation was possible as set out in paragraph 6. The issuing authority shall react expeditiously and within 5 days at the latest. The deadlines set out in paragraphs 1 and 2 shall not apply until the clarification is provided.
Amendment 626 #
Proposal for a regulation
Article 10 – paragraph 1
Article 10 – paragraph 1
1. Upon receipt of the EPOC-PR, the addressee shall, without undue delay, preserve the data requested. The preservation shall cease after 60 days, unless. However, the preservation shall be continued for a maximum of 60 additional days, if the issuing authority confirms within the first 60 days that the subsequent request for production has been launched.
Amendment 669 #
Proposal for a regulation
Article 11 – paragraph 1
Article 11 – paragraph 1
1. Addressees and, if different, service providers shall take the necessary measures to ensure the confidentiality of the EPOC or the EPOC-PR and of the data produced or preserved and where requested by the issuing authority, shall refrain from informing the person whose data is being sought in order not to obstruct the relevant criminal proceedings. As long as necessary and proportionate to avoid obstructing the relevant criminal proceedings, and taking due account of the impact of the measure on the fundamental rights of the person whose data is sought, the issuing authority may request the addressee to refrain from informing the person whose data is being sought.
Amendment 709 #
Proposal for a regulation
Article 14 – paragraph 2
Article 14 – paragraph 2
2. Upon receipt, the enforcing authority shall without further formalities recognise a European Production Order or European Preservation Order transmitted in accordance with paragraph 1 and shall take the necessary measures for its enforcement, unless the enforcing authority considers that one of the grounds provided for in paragraphs 4 or 5 apply or that the data concerned is protected by an immunity or privilege under its national law or its disclosure may impact its fundamental interests such as national security and defencethe conditions laid down in Articles 3, 4 or 5 are not met. The enforcing authority shall take the decision to recognise the Order without undue delay and no later than 5 working days after the receipt of the Order.
Amendment 710 #
Proposal for a regulation
Article 14 – paragraph 3
Article 14 – paragraph 3
3. Where the enforcing authority recognises the Order, it shall formally require the addressee to comply with the relevant obligation, informing the addressee of the possibility to oppose the enforcement by invoking the grounds listed in paragraphs 4 or 5, as well as the applicable sanctions in case of non- compliance, and set a deadline for compliance or opposition.
Amendment 736 #
Proposal for a regulation
Article 17 – paragraph 1
Article 17 – paragraph 1
1. Suspects and accused persAnyonse whose data was obtainedsought via a European Production Order or a European Preservation Order shall have the right to effective remedies against the European Production Order during the criminal proceedings for which the Order was issued,issuing State and the enforcing State without prejudice to remedies available under Directive (EU) 2016/680 and Regulation (EU) 2016/679.
Amendment 743 #
Proposal for a regulation
Article 17 – paragraph 3
Article 17 – paragraph 3
3. Such right to an effective remedy shall be exercised before a court in the issuing State and the enforcing State in accordance with its national law and shall include the possibility to challenge the legality of the measure, including its necessity and proportionality.
Amendment 746 #
Proposal for a regulation
Article 17 – paragraph 4
Article 17 – paragraph 4
4. Without prejudice to Article 11, the issuing authority and the enforcing authority shall take the appropriate measures to ensure that information is provided about the possibilities under national law for seeking remedies and ensure that they can be exercised effectively.
Amendment 747 #
Proposal for a regulation
Article 17 – paragraph 6
Article 17 – paragraph 6
6. Without prejudice to national procedural rules, Member States shall ensure that in criminal proceedings in the issuing State and the enforcing State the rights of the defence and the fairness of the proceedings are respected when assessing evidence obtained through the European Production Order.
Amendment 752 #
Proposal for a regulation
Article 18 – paragraph 1
Article 18 – paragraph 1
If transactional or content data obtained by the European Production Order is protected by immunities or privileges granted under the law of the Member State of the addressee, or it impacts fundamental interests of that Member Statmpacts fundamental interests of the Member State of the addressee such as national security and defence, the court in the issuing State shall ensure during the criminal proceedings for which the Order was issued that these grounds are taken into account in the same way as if they were provided for under their national law when assessing the relevance and admissibility of the evidence concerned. The court may consult the authorities of the relevant Member State, the European Judicial Network in criminal matters or Eurojust.
Amendment 781 #
Proposal for a regulation
Article 23 – paragraph 1
Article 23 – paragraph 1
Member States’ authorities may continue to issueuse also European Investigation Orders in accordance with Directive 2014/41/EU and mutual legal assitance procedures for the gathering of evidence that would also fall within the scope of this Regulation.
Amendment 785 #
Proposal for a regulation
Article 24 – paragraph 1
Article 24 – paragraph 1
By [53 years from the date of application of this Regulation] at the latest, the Commission shall carry out an evaluation of the Regulation and present a report to the European Parliament and to the Council on the functioning of this Regulation, which shall include an assessment of the need to enlarge or reduce its scope. If necessary, the report shall be accompanied by legislative proposals. The evaluation shall be conducted according to the Commission's better regulation guidelines. Member States shall provide the Commission with the information necessary for the preparation of that Report.