EU Consultation on Access to Electronic Evidence

August 17, 2017

The EU Commission has launched a
consultation exercise
, which is open until 27 October, seeking views on
ways to improve cross-border access to electronic evidence in criminal matters.

The objective is to gather input from a broad range of
interested stakeholders, including public authorities, judges, prosecutors, EU
institutions and agencies, international organisations, private companies,
professional and business associations, civil society, academics and the general

The aim is to collect information, views and experiences on
current practices on obtaining cross-border electronic evidence in Member
States as well as on practical and legal problems arising both at national and
EU level from any gaps and weaknesses in existing regulations.

The effective obtaining of electronic evidence frequently
has cross-border implications. Reliance is usually placed on judicial
cooperation mechanisms like mutual legal assistance (MLA) or, within the EU,
mutual recognition, on the direct cooperation of service providers, or on
direct access to obtain information. All raise different types of issues
affecting the success of investigations, sometimes resulting in abandoned and
unsuccessful cases.

In the European Agenda on Security, the Commission committed
to review obstacles to criminal investigations on cybercrime, notably on
cross-border access to electronic evidence. In its June 2016 Conclusions, the
Justice and Home Affairs Council asked the Commission to explore possible
solutions, including legislative options.

The Commission states that it will assess the scope for
horizontal or further sectorial action at EU level, while respecting the
principle of subsidiarity. The public consultation is intended to feed
this assessment ‘without, however, either prejudging any action by the European
Union or prejudging the legal feasibility of an EU action with regards to the
limits of the Union’s competence’.