EU E-Evidence Regulation Remains Uncertain

Greater criminal-law cooperation between EU Member States is the objective of the E-Evidence proposals. Whether this objective can be achieved, however, remains uncertain. Half a year after the proposal was introduced, the parties involved are still disputing the design of what may become a future EU regulation. The proposal, which concerns the securing of evidence across national borders, initially gained momentum quickly in December 2018, but subsequently lost support due to the position of the Council. As many as seven Member States, including Germany, then voted against the previously agreed general approach of the EU justice ministers. Katarina Barley, Federal Minister of Justice and Consumer Protection, justified this by stating that while the objective was the right one, comprehensive protection of fundamental rights could not be guaranteed in this way. For Germany’s approval, a four-eyes principle would be important: in order to avoid unlawful interferences with fundamental rights, the requesting Member State must allow the executing Member State to review the respective order. The Council’s existing position, however, provides only a partial possibility for this and grants the executing state only limited review powers in restricted cases. Such debates about rule-of-law standards, as well as recent judgments of the Court of Justice of the European Union, show that mutual trust still has limits even today and that only slow progress can therefore be expected. Birgit Sippel (SPD), among others, has also expressed doubts about the competence basis under Article 82 TFEU. She particularly questions the added value, since a European Investigation Order had already entered into force in 2017. Furthermore, such a regulation carries the risk of privatising criminal law, as the assessment of the lawfulness of a production order would be left to third parties.

This is also likely to have a considerable impact on data protection, and individuals’ ability to make use of legal remedies may not be sufficiently guaranteed. Whether an agreement will be reached before the European elections in May is therefore more than doubtful, meaning that E-Evidence will remain an issue in the next legislative term as well.