Activities of Nuno MELO related to 2018/0108(COD)
Plenary speeches (1)
Electronic evidence in criminal proceedings: legal representatives directive - Electronic evidence regulation: European production and preservation orders for electronic evidence in criminal matters (debate)
Shadow reports (1)
REPORT on 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
Amendments (62)
Amendment 268 #
Proposal for a regulation
Recital 2
Recital 2
(2) Measures to obtain and preserve electronic evidence are increasingly important to enable criminal investigations and prosecutions across the Union as well as to prevent the commission of crimes. Effective mechanisms to obtain electronic evidence are of the essencetial to combat crime, subject to conditions to ensure full accordance with fundamental rights and principles recognised in the Charter of Fundamental Rights of the European Union ('the Charter') as enshrined in the Treaties, in particular the principles of necessity and proportionality, due process, data protection, secrecy of correspondenceconfidentiality of communications and privacy.
Amendment 273 #
Proposal for a regulation
Recital 6
Recital 6
(6) The European Parliament echoed these concerns in its Resolution on the fight against cybercrime of 3 October 201728 , by highlighting the challenges that the currently fragmented legal framework can create for service providers seeking to comply with law enforcement requests and calling on the Commission to put forward a Union legal framework for electronic evidence and to impose an obligation on service providers to respond to law enforcement requests from other Member States, with sufficient safeguards for the rights and freedoms of all concerned. _________________ 28 2017/2068(INI).
Amendment 275 #
Proposal for a regulation
Recital 7
Recital 7
(7) Network-basedElectronic communications services and information society services can be provided from anywhere and do not require a physical infrastructure, premises or staff in the relevant countrycountry where the service is offered. As a consequence, relevant evidence for criminal investigation is often stored outside of the investigating State or by a service provider established outside of this State. Frequently, there is no other connection between the case under investigation in the State concerned and the location of storage or the main establishment of the service provider are the only connection between the state from which electronic evidence is requested and the investigating State, as the crime was committed in the investigating State ofand the place of storage or of the main establishment of the service providererpetrator and the victim are both present on its territory.
Amendment 278 #
Proposal for a regulation
Recital 8
Recital 8
(8) Due to this lack of connection, judicial cooperation requests are often addressed toUnder the current mutual legal assistance framework, states which are hosts to a large number of service providers, but w are faced with a hicgh havenumber of judicial cooperation requests despite having no other relation to the case at hand. FurthermoreOver the previous years, the number of requests has even multiplied in view of increasingly used networkedelectronic communications and information society services that are borderless by nature. As a result, obtaining electronic evidence using judicial cooperation channels often takes a long time — longer than subsequent leads may be available due to their volatile nature. Furthermore, there is no clear legal framework for cooperation with service providers, whilealthough certain third-country providers accept direct requests for non- content data as permitted by their applicable domestic law. As a consequence, all Member States rely on the voluntary cooperation channel with service providers where available, using different national tools, conditions and procedures. In addition, for content data, some Member States have taken unilateral action, while others continue to rely on judicial cooperation.
Amendment 282 #
Proposal for a regulation
Recital 9
Recital 9
(9) The fragmented legal framework both across EU Member States as well as between Member States and third countries creates challenges for service providers seeking to comply with law enforcement requests as they are faced with legal uncertainty and, potentially, conflicts of laws. Therefore there is a need to put forwardin place a European legal framework for electronic evidence to impose an obligation onwith a view to oblige service providers covered by the scope of the instrument to respond directly to requests by competent authorities without the direct involvement of a judicial authority in the Member State ofwhere the service provider has its main establishment.
Amendment 291 #
Proposal for a regulation
Recital 12
Recital 12
(12) This Regulation respects fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union. These include the right to liberty and security of the person, the respect for private and family life, the protection of personal data, the freedom to conduct a business, the right to property, the right to an effective remedy and to a fair trial, the presumption of innocence and right of defence, the principles of the legality and proportionality, as well as the right not to be tried or punished twice in criminal proceedings for the same criminal offence. In case the issuing Member State has indications that parallel criminal proceedings may be ongoing in another Member State, it shall consult the authorities of this Member State in accordance with Council Framework Decision 2009/948/JHA29 . _________________ 29Council Framework Decision 2009/948/JHA of 30 November 2009 on prevention and settlement of conflicts of exercise of jurisdiction in criminal proceedings (OJ L 328, 15.12.2009, p. 42).
Amendment 305 #
Proposal for a regulation
Recital 21
Recital 21
(21) It is appropriate to single out access data as a specific data category used in this Regulation. Access data is pursued for the same objective as subscriber data, in other words to identify the underlying user, and the level of interference with fundamental rights is similar to that of subscriber data. Access data is typically recorded as part of a record of events (in other words a server log) to indicate the commencement and termination of a user access session to a service. It is often an individual IP address (static or dynamic) The specific category of 'access data' is introduced in this Regulation because technical identifiers such as IP addresses constitute a crucial starting point for criminal investigations in which the identity of a suspect is not known. In order to enable a request for subscriber data in a subsequent step, authorities will first have to acquire the server log, i.e. the record of activity on a server, for a specific access request. For each request, the logs include different information, such as the commencement and termination of a user access session, static or dynamic IP adresses of the computer making the request, or the Login ID. Given that certain data covered by the definition of access data could reveal very sensitive and personal information, the request for such data should only be allowed for other identifier th sole purpose of identifying the user. The data singles out the network interface used during the access session. If the user is unknown, it often needs to be obtained befhould not be used for any other purpose, including the request for bulk data that would allow for the profiling of a person. Given the purpose limitation regarding the use of access data in criminal investigations, this data categorey subscriber data related to that identifier can be ordered from the service providerhould not be subject to a threshold. Instead, it should be possible to request such data for all types of offenses.
Amendment 308 #
Proposal for a regulation
Recital 22
Recital 22
(22) Transactional data, on the other hand, is generally pursued to obtain more privacy-intrusive information about, such as the contacts and whereabouts of the user and may be served to establish a profile of an individual concerned. That said, access data cannot by itself serve to establish a similar purpose, for example iAccess data focus exclusively on the user but does not reveal any information on interlocutors related to the user. Hence this proposal introduces a new category of data, which is toactions with other persons. Hence, access data should be treated like subscriber data if the aim of obtaining this data, namely the identification of the suspect, is similar.
Amendment 311 #
Proposal for a regulation
Recital 23
Recital 23
(23) All data categories contain personal data, and are thus covered by the safeguards under the Union data protection acquis, but the intensity of. However, the impact on fundamental rights varies between the categories, in particular between subscriber data and access data on the one hand and transactional data and content data on the other hand. While subscriber data and access data are usefulonly serve to obtain first leads in an investigation about the identity of a suspect, transactional and content data are the most relevant as probative material which could finally lead to a conviction of the suspect. It is therefore essential that all these data categories are covered by the instrument. Because of the different degree of interference with fundamental rights, different safeguards and conditions are imposed for obtaining subscriber and access data on the one hand, and transactional and content data on the other.
Amendment 312 #
Proposal for a regulation
Recital 24
Recital 24
(24) The European Production Order and the European Preservation Order are investigative measures that should be issued only in the framework of specific criminal proceedings against the specific known or still unknown perpetrators of a concrete criminal offence that has already taken place, after an individual evaluation of the proportionality and necessity in every single case.
Amendment 314 #
Proposal for a regulation
Recital 27
Recital 27
(27) The determination whether a service provider offers services in the Union requires an assessment whether the service provider enables legal or natural persons in one or more Member States to use its services. However, the mere accessibility of an online interface as for instance the accessibility of the service provider’s or an intermediary’s website or of an email address and of other contact details in one or more Member States taken in isolation should not be a sufficient condition for the application of this Regulationthe Union to use its services and has a substantial connection to one or more Member States.
Amendment 317 #
Proposal for a regulation
Recital 28
Recital 28
(28) A substantial connection to the Union should also be relevant to determine the ambit of application of the present Regulation. Such a substantial connection to the Union should be considered to exist where the service provider has an establishment in the Union. In the absence of such an establishment, the criterion of a 'substantial connection' should be assessed on the basis of the existence of a significant number of users in one or more Member States, or the targeting of activities towards one or more Member States. The targeting of activities towards one or more Member States canshould be determined on the basis of all relevant circumstances, including factors such as. These circumstances include the use of a language or a currency generally used in that Member State, or the possibility of ordering goods or services. The targeting of activities towards a Member State could also be derived from, the availability of an application (‘app’) in the relevant national app store, fromthe providingsion of local advertising or advertising in thea language used in that Member State, or from the handling of customer relations such as by providingthe provision of customer service in thea language generally used in that Member State. A substantial connection is also to be assumed where a service provider directs its activities towards one or more Member States as set out in Article 17(1)(c) of Regulation 1215/2012 on jurisdiction and the recognition and enforcement of judgements in civil and commercial matters.36 On the other hand,36 However, the mere accessibility of an online interface such as the website of the service provider or an intermediary, an email address and other contact details taken in isolation should not be a sufficient condition for the application of this Regulation. Moreover, the provision of thea service in view of mere compliance with the prohibition to discriminate laid down in Regulation (EU) 2018/30237 cannot be, on that ground alone, be considered as directing or targeting activities towards a given territory within the Union. The same considerations should apply to determine whether a service provider offers services in a Member State. _________________ 36 Regulation (EU) 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ L 351, 20.12.2012, p. 1). 37 Regulation (EU) 2018/302 of the European Parliament and of the Council of 28 February 2018 on addressing unjustified geo-blocking and other forms of discrimination based on customers' nationality, place of residence or place of establishment within the internal market and amending Regulations (EC) No 2006/2004 and (EU) 2017/2394 and Directive 2009/22/EC (OJ L 601, 2.3.2018, p. 1).
Amendment 321 #
Proposal for a regulation
Recital 30
Recital 30
(30) When a European Production or Preservation Order is issued, there should always be a judicial authority involved either in the process of issuing or validating the Order. In view of the more sensitive character of transactional and content data, the issuing or validation of European Production Orders for production of these categories requires review by a judge or court. As subscriber and access data are less sensitive, European Production Orders for their disclosure can in addition be issued or validated by competent prosecutors.
Amendment 324 #
Proposal for a regulation
Recital 31
Recital 31
(31) For the same reason, a distinction has to be made regarding the material scope of this Regulation: Orders to produce subscriber data and access data can be issued for any criminal offence as these data are essential to identify a user, whereas access to transactional and content data should be subject to stricter requirements to reflect the more sensitive nature of such data. A threshold allows for a more proportionate approach, together with a number of other ex ante and ex post conditions and safeguards provided for in the proposal to ensure respect for proportionality and the rights of the persons affected. At the same time, a threshold should not limit the effectiveness of the instrument and its use by practitioners. Allowing the issuing of Orders for investigations that carry at least a threewo-year maximum sentence limits the scope of the instrument to more serious crimes, without excessively affecting the possibilities of its use by practitioners. It excludes from the scope a significant number of crimes which are considered less serious by Member States, as expressed in a lower maximum penalty. It also has the advantage of being easily applicable in practice.
Amendment 330 #
Proposal for a regulation
Recital 34 a (new)
Recital 34 a (new)
(34 a) The confidentiality of the ongoing investigation, including the fact that there has been an Order to obtain relevant data, has to be protected in order not to jeopardize its success and to protect other persons involved, especially victims. For this reason, the addressee of the order and the service provider should refrain from informing the person whose data is being sought where necessary and proportionate to protect the fundamental rights and legitimate interests of another person. If the issuing authority expressly allows it, the addressee or service provider should be able to inform the respective person that his or her data is being sought.
Amendment 341 #
Proposal for a regulation
Recital 38
Recital 38
(38) The European Production and European Preservation Orders should be transmitted to the service provideraddressee through a European Production Order Certificate (EPOC) or a European Preservation Order Certificate (EPOC-PR), which should be translated. The Certificates should contain the same mandatory information as the Orders, except for the grounds for the necessity and proportionality of the measure or further details about the case to avoid jeopardising the investigations. But as they are part of the Order itself, they allow the suspect to challenge it later during the criminal proceedings. Where necessary, a Certificate needs toshould be translated into (one of) the official language(s) of the enforcing Member State of the addressee, or into another official language that the service provider has declared it will accept. in accordance with Article 4 (2) of the [Directive1a]. _________________ 1aProposal 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 (2018/0107 (COD))
Amendment 345 #
Proposal for a regulation
Recital 40
Recital 40
(40) The requested dataservice provider should be transmitted the requested electronic data to the authorities at the latest within 10 days upon receipt of the EPOC. Shorter time limits should be respected by the provider in emergency cases and if the issuing authority indicates other reasons need to depart from the 10 day deadline. In addition to the because of an imminent danger of the deletion of the requested data, such reasons could include or circumstances that are related to an ongoing investigation, for example where the requested data is associated to other urgent investigative measures that cannot be conducted without the missing data or are otherwise dependent on it.
Amendment 349 #
Proposal for a regulation
Recital 41
Recital 41
(41) In order to allow service providers to address formal problems, it is necessary to set out a procedure for the communication between the service provider and the issuing judicial authority in cases where the EPOC might be incomplete or contains manifest errors or not enough information to execute the Order. This procedure should exist irrespective of any possible notifications obligation depending on specific situation as this is a problem that mainly occurs for the addressee itself as the service provider will be the best placed to realise whether the information he received are sufficient to comply with the order. Moreover, should the service provider not provide the information in an exhaustive or timely manner for any other reason, for example because it thinks there is a conflict with an obligation under the law of a third country, or because it thinks the European Production Order has not been issued in accordance with the conditions set out by this Regulation, it should go back to the issuing authorities and provide the opportune justifications. The communication procedure thus should broadly allow for the correction or reconsideration of the EPOC by the issuing authority at an early stage. To guarantee the availabilty of the data, the service provider should preserve the data if they can identify the data sought.
Amendment 350 #
Proposal for a regulation
Recital 41 a (new)
Recital 41 a (new)
(41 a) Although the added value of this Regulation lies in the fact that the issuing authority can address the service provider without having to go through mutual legal assistance, it is reasonable to notify the enforcing authority of a European Production Order where it concerns transactional or content data, given their high level of sensitivity, and the issuing authority has reasonable grounds to believe that the person whose data is sought is not residing on the territory of the issuing Member State. In such case, the issuing authority should submit a copy of the EPOC to the enforcing authority at the same that the EPOC is submitted to the addressee. In order to ensure the efficiency of the European Production Order, the notification should not have a suspensive effect on the obligations of the addressee to produce the requested data and to send them to the issuing authority. However, the notified authority may raise objections in relation to a limited number of grounds which should be raised as soon as possible but no later than 10 days. If necessary to establish whether one of the grounds exists, the authority should be able to request additional information from the issuing authority, which should be given 10 days to provide information or withdraw the Order. As far as the objection raised concerns regarding immunities and privileges under national law of the enforcing Member State, the issuing authority should be able to request the enforcing authority to request the competent authority to waive these immunities or privileges. When raising an objection, the enforcing Member State should also inform the issuing authority whether it may consequentially not use the data or only use it only under specified conditions. The issuing authority should take this information into account. In cases where the enforcing authority informed the issuing authority that it may not use the data, the latter should make no further use of these data but delete them immediately.
Amendment 351 #
Proposal for a regulation
Recital 41 b (new)
Recital 41 b (new)
(41 b) It should be possible to object to an order where its execution in the executing State would involve a breach in the immunity or privilege in that State. There is no common definition of what constitutes an immunity or privilege in Union law. The precise definition of these terms is therefore left to national law, which could include protections which apply to medical and legal professions, but should not be interpreted in a way to counter the obligation to abolish certain grounds for refusal as set out in the Protocol to the Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union1a. _________________ 1a Protocol established by the Council in accordance with Article 34 of the Treaty on European Union to the Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union (OJ C 326, 21.11.2001, p. 2).
Amendment 356 #
Proposal for a regulation
Recital 42
Recital 42
(42) Upon receipt of a European Preservation Order Certificate (‘EPOC- PR’), the service provider should preserve requested data for a maximum of 60 days unless the issuing authority informs the service provider that it has launched the procedure for issuing a subsequent request for production, in which case the preservation should be continued. The 60 day period is calculated to allow for the launch of an official request. This requires that at least some formal steps have been taken, for example by sending a mutual legal assistance request to translation. Following receipt of that information, the data should be preserved as long as necessary until the data is produced in the framework of a subsequent request for production. Only when necessary to allow further assessment of the relevance of the data in ongoing investigations and prevent the issuing of European Production Order for the sake of making sure that potentially relevant data is not lost, before the referred preservation period ends, the issuing authority could send a request to prolong the preservation of data by up to 60 days.
Amendment 373 #
Proposal for a regulation
Recital 51
Recital 51
(51) Where conflicting obligations exist, the court should determine whether the conflicting provisions of the third country prohibit disclosure of the data concerned on the grounds that this is necessary to either protect the fundamental rights of the individuals concerned or the fundamental interests of the third country related to national security or defence. In carrying out this assessment, the court should take into account whether the third country law, rather than being intended to protect fundamental rights or fundamental interests of the third country related to national security or defence, manifestly seeks to protect other interests or is being aimed to shield illegal activities from law enforcement requests in the context of criminal investigations. Where the court concludes that conflicting provisions of the third country prohibit disclosure of the data concerned on the grounds that this is necessary to either protect the fundamental rights of the individuals concerned or the fundamental interests of the third country related to national security or defence, it should consult the third country via its central authorities, which are already in place for mutual legal assistance purposes in most parts of the world. It should set a deadline for the third country to raise objections to the execution of the European Production Order; in case the third country authorities do not respond within the (extended) deadline despite a reminder informing them of the consequences of not providing a response, the court upholds the Order. If the third country authorities object to disclosure, the court should lift the Order.
Amendment 378 #
Proposal for a regulation
Recital 54
Recital 54
(54) It is essential that all persons whose data are requested in criminal investigations or proceedings have access to an effective legal remedy, in line with Article 47 of the Charter of Fundamental Rights of the European Union. For suspects and accused persons, the right to an effective remedy should be exercised during the criminal proceedings. This may affect the admissibility, or as the case may be, the weight in the proceedings, of the evidence obtained by such means. In addition, they benefit from all procedural guarantees applicable to them, such as the right to information. Other persons, who are not suspects or accused persons, should also have a right to an effective remedy. Therefore, as a minimum, the possibility to challenge the legality of a European Production Order or a European Preservation Order, including the necessity and the proportionality of the Order, should be provided. This Regulation should not limit the possible grounds to challenge the legality of the Order. These remedies should be exercised in the issuing State in accordance with national law. Rules on interim relief should be governed by national law.
Amendment 382 #
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 387 #
Proposal for a regulation
Recital 56
Recital 56
(56) The protection of natural persons for the processing of personal data is a fundamental right. In accordance with Article 8(1) of the Charter of Fundamental Rights of the European Union and Article 16(1) of the TFEU, everyone has the right to the protection of personal data concerning them. When implementing this Regulation, Member States should ensure that personal data are protected and may only be processed in accordance with Regulation (EU) 2016/679 and Directive (EU) 2016/680.
Amendment 412 #
Proposal for a regulation
Article 2 – paragraph 1 – point 4 – introductory part
Article 2 – paragraph 1 – point 4 – introductory part
(4) ‘offering services in the Union’ means: enabling legal or natural persons in one or more Member States to use the services referred to in point (2) and having a substantial connection to that Member State, such as
Amendment 415 #
Proposal for a regulation
Article 2 – paragraph 1 – point 4 – point a
Article 2 – paragraph 1 – point 4 – point a
(a) enstabling legal or natural persons in one or more Member State(s) to use the services listed under (3) above; andshment of the service provider in the Union;
Amendment 416 #
Proposal for a regulation
Article 2 – paragraph 1 – point 4 – point a a (new)
Article 2 – paragraph 1 – point 4 – point a a (new)
(a a) a significant number of users in one or more Member State(s);
Amendment 419 #
Proposal for a regulation
Article 2 – paragraph 1 – point 4 – point b
Article 2 – paragraph 1 – point 4 – point b
(b) having a substantial connection to the Member State(s) referred to in point (a);targeting of activities towards one or more Member State(s).
Amendment 425 #
Proposal for a regulation
Article 2 – paragraph 1 – point 6
Article 2 – paragraph 1 – point 6
(6) ‘electronic evidence’ means evidenceinformation' means data, including metadata, stored in electronic form by or on behalf of a service provider at the time of receipt of a production or preservation order certificate, consisting in stored subscriber data, access data, transactional data and content data; that might serve as evidence during the investigation, prosecution and legal proceedings regarding a criminal offence in a Member State in accordance with national law.
Amendment 437 #
Proposal for a regulation
Article 2 – paragraph 1 – point 8
Article 2 – paragraph 1 – point 8
(8) ‘access data’ means data related to the commencement and termination of atechnical identifiers related to a specific user access session to a service, which is strictly necessaryshall be requested for the sole purpose of identifying the user of the service, such as the Login ID, the date and time of use, or the log-in to and log-off from the service, together withor the IP address allocated by the internet access service provider to the user of a service, data identifying the interface used and the user ID. This includes electronic communications metadata as defined in point (g) of Article 4(3) of [Regulation concerning the respect for private life and the protection of personal data in electronic communications];
Amendment 442 #
Proposal for a regulation
Article 2 – paragraph 1 – point 9
Article 2 – paragraph 1 – point 9
(9) ‘transactional data’ means data related to the provision of a service offered by a service provider that serves to provide context or additional information about such service and is generated or processed by an information system of the service provider, such as the source and destination of a message or another type of interaction, data on the location of the device, date, time, duration, size, route, format, the protocol used and the type of compression, unless such data constitues access data. This includes electronic communications metadata as defined in point (g) of Article 4(3) of [Regulation concerning the respect for private life and the protection of personal data in electronic communications];
Amendment 452 #
Proposal for a regulation
Article 2 – paragraph 1 – point 13
Article 2 – paragraph 1 – point 13
(13) ‘enforcing State’ means the Member State in which the addressee of the European Production Order or the European Preservation Order resides or is established and to which the European Production Order and the European Production Order Certificate or the European Preservation Order and the European Preservation Order Certificate arwould be transmitted for enforcement;
Amendment 458 #
Proposal for a regulation
Article 2 – paragraph 1 – point 14
Article 2 – paragraph 1 – point 14
(14) ‘enforcing authority’ means the competent authority in the enforcing State to which the European Production Order and the European Production Order Certificate or the European Preservation Order and the European Preservation Order Certificate arwould be transmitted by the issuing authority for enforcement;
Amendment 462 #
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 469 #
Proposal for a regulation
Article 4 – paragraph 1 – introductory part
Article 4 – paragraph 1 – introductory part
1. A European Production Order for obtaining subscriber data and access data may be issued by:
Amendment 473 #
Proposal for a regulation
Article 4 – paragraph 1 – point a
Article 4 – paragraph 1 – point a
(a) a judge, a court, an investigating judge or prosecutor competent in the case concerned; or, in accordance with national law;
Amendment 480 #
Proposal for a regulation
Article 4 – paragraph 2 – point a
Article 4 – paragraph 2 – point a
(a) a judge, a court or an investigating judge competent in the case concerned; or, in accordance with national law.
Amendment 494 #
Proposal for a regulation
Article 5 – paragraph 3
Article 5 – paragraph 3
3. European Production Orders to producefor obtaining subscriber data or access data may be issued for all criminal offences.
Amendment 503 #
Proposal for a regulation
Article 5 – paragraph 4 – point a
Article 5 – paragraph 4 – point a
(a) for criminal offences punishable in the issuing State by a custodial sentence of a maximum of at least 32 years, or
Amendment 511 #
Proposal for a regulation
Article 5 – paragraph 5 – point c
Article 5 – paragraph 5 – point c
(c) the persons whose data is being requesteduser, except where the sole purpose of the order is to identify a person;the user, or any other unique identifier such as user name, Login ID to determine the data that are being sought.
Amendment 529 #
Proposal for a regulation
Article 6 – paragraph 3 – point c
Article 6 – paragraph 3 – point c
(c) the persons whose data shall be preserveduser, except where the sole purpose of the order is to identify a person;the user, or any other unique identifier such as user name, Login ID to determine the data that are being sought.
Amendment 558 #
Proposal for a regulation
Article 7 a (new)
Article 7 a (new)
Amendment 570 #
Proposal for a regulation
Article 8 – paragraph 3
Article 8 – paragraph 3
3. The EPOC shall contain all the information listed in Article 5(5) (a) to (h), including sufficient information to allow the addressee and if applicable the notified authorities of the executing State to identify and contact the issuing authority. The grounds for the necessity and proportionality of the measure or further details about the investigations shall not be included.
Amendment 574 #
4. The EPOC-PR shall contain all the information listed in Article 6(3) (a) to (f), including sufficient information to allow the addressee to identify and contact the issuing authority. The grounds for the necessity and proportionality of the measure or further details about the investigations shall not be included.
Amendment 579 #
Proposal for a regulation
Article 8 – paragraph 5
Article 8 – paragraph 5
5. Where needed, the EPOC or the EPOC-PR shall be translated into an official language of the Union accepted by the addressee. Where no language has been specified, the EPOC or the EPOC-PR shall be translated into one of the official languages of the Member State where the legal representative resides or is established.
Amendment 599 #
Proposal for a regulation
Article 9 – paragraph 2
Article 9 – paragraph 2
2. In emergency cases the addressee shall transmit the requested data without undue delay, at the latest within 68 hours upon receipt of the EPOC.
Amendment 609 #
Proposal for a regulation
Article 9 – paragraph 3
Article 9 – paragraph 3
3. If the addressee cannot comply with its obligation because the EPOC is incomplete, contains manifest errors or does not contain sufficient information for the addressee to execute the EPOC, the addressee shall 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 618 #
Proposal for a regulation
Article 9 – paragraph 5 – subparagraph 2
Article 9 – paragraph 5 – subparagraph 2
In case the addressee considers that the EPOC cannot be executed because based on the sole information contained in the EPOC it is apparent that it manifestly violates the Charter of Fundamental Rights of the European Union or that it is manifestly abusive, the addressee shall also send the Form in Annex III to the competent enforcement authority in the Member State of the addressee. In such cases the competent enforcement authority may seek clarifications from the issuing authority on the European Production Order, either directly or via Eurojust or the European Judicial Network.
Amendment 641 #
Proposal for a regulation
Article 10 – paragraph 3 – subparagraph 1 (new)
Article 10 – paragraph 3 – subparagraph 1 (new)
Before the preservation period referred to in paragraph 1 has ended, the issuing authority may send a request to prolong the data preservation period by up to 60 days only when necessary to allow further assessment of the relevance of the data.
Amendment 670 #
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 toto avoid obstructing the relevant criminal proceedings. They shall only inform the person whose data are being sought if explicitly allowed by the issuing authority. In that case, the issuing authority shall also provide information pursuant to paragraph 4 of this Article to the addressee or, if different, to the service provider.
Amendment 688 #
Proposal for a regulation
Article 11 – paragraph 3
Article 11 – paragraph 3
3. WThen informing the person, the issuing authority shall include information about any available remedies as referred to in Article 17 issuing authority may abstain from informing the person whose subscriber or access data was sought where necessary and proportionate to protect the fundamental rights and legitimate interests of another person, and in particular where these rights and interests outweigh the interest to be informed of the person whose data were sought.
Amendment 689 #
Proposal for a regulation
Article 11 – paragraph 3 – subparagraph 1 (new)
Article 11 – paragraph 3 – subparagraph 1 (new)
When informing the person, the issuing authority shall include information about any available remedies as referred to in Article 17.
Amendment 720 #
Proposal for a regulation
Article 15 – paragraph 1
Article 15 – paragraph 1
1. If the addressee considers that compliance with the European Production OrderPOC would conflict with applicable laws of a third country prohibiting disclosure of the data concerned on the grounds that this is necessary to either protect the fundamental rights of the individuals concerned or the fundamental interests of the third country related to national security or defence, it shall inform the issuing authority of its reasons for not executing the European Production Order in accordance with t, it may suspend execution of the EPOC. The procedure referred to in Article 9(5) shall apply.
Amendment 723 #
Proposal for a regulation
Article 15 – paragraph 2
Article 15 – paragraph 2
2. The reasoned objection shall include all relevant detailsinformation on the law of the third country, its applicability to the case at hand and the nature of the conflicting obligation. ItThe objection cannot only be based on the fact that similar provisions concerning the conditions, formalities and procedures of issuing a production order do not exist in the applicable law of the third country, nor on the only circumstance that the data is stored in a third country, nor on the location of data storage.
Amendment 725 #
Proposal for a regulation
Article 15 – paragraph 4
Article 15 – paragraph 4
Amendment 726 #
Proposal for a regulation
Article 15 – paragraph 5
Article 15 – paragraph 5
5. If the competent court finds that no relevant conflict within the meaning of paragraphs 1 and 4 exists, it shall uphold the Order. If the competent court establishes that a relevant conflict within the meaning of paragraphs 1 and 4 exists, the competent courexists and that the relevant third country law serves to protect fundamental rights of the individuals concerned or fundamental interests of the third country related to national security or defence, the competent court shall consult the third country concerned. For this purpose, it shall transmit all relevant factual and legal information as regards the case, including its assessment, to the central authorities in the third country concerned, via its national central authority, with. The competent court shall set a 15 day deadline to respond. Upon reasoned request from the third country central authority, the deadline may be extended by up to 30 days. If the third country objects to the execution of the European Production Order, the competent court shall lift the Order and inform the issuing authority and the addressee. If no objection is received within the extended deadline, the competent court shall uphold the Order.
Amendment 728 #
Proposal for a regulation
Article 15 – paragraph 6
Article 15 – paragraph 6
6. If the third country central authority,competent court established that a conflict within the dmeadline, informs the competent court that it objects to the execution of the European Production Order in this case, the competent court shall lift the Order and inform the issuing authority and the addressee. If no objection is received within the (extended) deadline, the competent court shall send a reminder giving the third country central authority 5 more days to respond and informing it of the consequences of not providning of paragraph 1 exists and that the relevant third country law prohibits disclosure of the data concerned on grounds other than those enumerated in paragraph 6, the competent court shall determine whether to uphold or withdraw the Order, in particular on the basis of the following factors: (a) the interest protected by the relevant law of the third country, including the third country's interest in preventing disclosure of the data; (b) the degree of connection of the criminal case for which the Order was issued to either of the two jurisdictions, as indicated inter alia by the location, nationality and residence of the person whose data is being sought and/or of the victim(s). (c) the degree of connection between the service provider and the third country in question;the data storage location by itself does not suffice in establishing a substantial degree of connection; (d) the interests of the investigating Sate in obtaining the evidence concerned, based on the seriousness of the offence and the importance of obtaining evidence ing a response. If no objection is receivedn expeditious manner; (e) the possible consequences for the addressee or the service provider of complying within this additional deadline, the competent court shall uphold the Order. e European Production Order, including the sanctions that may be incurred.
Amendment 737 #
Proposal for a regulation
Article 17 – paragraph 1
Article 17 – paragraph 1
1. Suspects and accused pPersons whose data was obtained via a European Production Order or European Preservation Order shall have the right to effective remedies against the European Produrespectionve Order during the criminal proceedings for which the Order was issuedissuing State, without prejudice to remedies available under Directive (EU) 2016/680 and Regulation (EU) 2016/679. It shall be exercised before a court in the issuing State in accordance with its national law.
Amendment 759 #
Proposal for a regulation
Article 19 – paragraph 2 – point b a (new)
Article 19 – paragraph 2 – point b a (new)
(b a) the number of EPOCs and EPOC- PRs that have been objected to by the type of data requested, addressees, situation (emergency case or not) and the reason for objection.
Amendment 775 #
Proposal for a regulation
Article 22 – paragraph 1 – point b
Article 22 – paragraph 1 – point b
(b) the enforcing authority or authorities which are competent to enforce European Production Orders and European Preservation Orders on behalf of another Member State;to which the EPOC or EPOC-PR is transmitted for enforcement or which is notified in accordance with Article 7a.
Amendment 778 #
Proposal for a regulation
Article 22 – paragraph 1 – point c
Article 22 – paragraph 1 – point c
(c) the courts competent to deal with reasoned objections by addressees in accordance with Articles 15 and 16.