The key elements of the LIBE Committee’s compromise proposal on e-evidence: a critical overview through a fundamental rights lens

ABSTRACT

This article examines the compromise proposal for a Regulation on cross-border access to electronic information in criminal matters the European Parliament Committee on Civil Liberties, Justice and Home Affairs voted in favour of in December 2020. It explores the origins of the e-evidence initiative as a whole by placing it in the context of the EU cooperation on counter-terrorism and digitalization strategy. On this basis, it presents the key elements of the compromise proposal with a focus on the envisaged function of the so-called European Production and Preservation Orders. To contribute to the ongoing debate on the suitability of that proposal compared to the one released by the Commission in April 2018, it argues that the LIBE Committee’s proposal fits better into a Union of Security and Freedom, but further improvements are needed to increase the protection of fundamental rights, given the intrusiveness of the suggested investigative measures.

KEYWORDS:

• E-evidence
• compromise proposal on e-evidence
• European Union
• LIBE Committee
• fundamental rights

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1 According to Art. 12 (3–4) EIO Directive, the EIO’s execution shall be completed within a maximum of 120 days, a time limit set to render the investigations depending on EIOs more efficient (Ambos, 2018, p. 457; cf. Böse, 2018, p. 17).

2 The Recitals and Articles of the draft EPO Regulation will be subsequently cited according to the compromise proposal (EP, 2020), unless otherwise stated.

3 The term is defined in Art. 2[3] EPO Regulation without any major differences compared to the Commission’s proposal. The service provider shall offer its services in the Union (Art. 2[4] EPO Regulation, which also defines expressly the term “substantial connection”).

4 In this case, the minimum-maximum penalty threshold applies cumulatively and not alternatively as in Art. 5 EPO Regulation.

Additional information

Notes on contributors

Athina Sachoulidou

Athina Sachoulidou is Assistant Professor in Criminal Law at the NOVA School of Law in Lisbon and Vice-director of the School’s research centre CEDIS. Prior to joining the NOVA School of Law, Athina Sachoulidou was a Max Weber Fellow at the European University Institute, where her research focused on the intersection of criminal law and big-data-driven technologies. She holds a PhD in Law with a focus on financial and corporate criminal law from the Ruperto Carola University of Heidelberg.