New Technologies in International Law / Tymofeyeva, Crhák et al.

1. Background Although the need for concrete action based on a common EU approach to improve mutual legal assistance and cooperation between Member States’ authorities and ISPs has been formally addressed by the European Union institutions since 2016 158 and the draft regulation was presented by the Commission as early as 2018 159 , the relevant legal act wasn’t adopted until June 2023. The length of the legislative process was the result of numerous comments and amendments submitted by individual Member States. The questions raised concerned various provisions, both at a general level and with regard to detailed technical and procedural issues, but mainly focused on the problem of striking a balance between the efficiency of new instruments on the one hand, and taking due account of the interests of all parties involved in their functioning on the other. 160 Once the final text of the Regulation had been agreed, it was adopted by qualified majority by the Council in a voting session on 27 June 2023 161 and published in the Official Journal of the EU on 28 July. Under its provisions, two entirely new cooperation mechanisms for enhanced judicial cooperation in criminal matters have been introduced into national legal systems, namely the European Production Order and the European Preservation Order. 2. European Production Order and European Preservation Order – General informations The European Production Order and the European Preservation Order (hereafter referred to together as EPOs or EPdOs and EPsOs respectively) represent a completely new approach to cross-border cooperation in criminal proceedings, responding to the needs of judicial authorities in relation to the specificity of digital evidence and the need for their immediate preservation. The innovative feature of these constructions is that, unlike traditional European Investigation Orders (EIOs), which are executed through the competent authorities of the executing State, EPOs are of a direct nature. This means that, as a general rule, the competent judicial authority in the EU, when conducting criminal proceedings, including criminal investigations, or for the purpose of execution of a custodial sentence or detention order, may request any service provider offering services in the Union and established in another Member State, or, if not established, represented by a legal representative in another Member State, to produce or preserve electronic evidence, irrespective of the location of the data (Article 158 See: Conclusions of the Council of the European Union on improving criminal justice in cyberspace, ST9579/16. 159 Proposal for a Regulation of the European Parliament and of the Council on European Production and Preservation Orders for electronic evidence in criminal matters, COM/2018/225 final – 2018/0108 (COD). 160 For detailed history of the adoption procedure see: https://eur-lex.europa.eu/legal-content/EN/ HIS/?uri=CELEX:32023R1543. 161 21 Member States voted in favour of the Regulation. There were three votes against the Regulation - from Poland and Hungary, both of which objected to the proposed grounds for refusal based on Article 7 TEU procedures, but also from Finland, which pointed to the lack of balance between effective law enforcement and criminal investigation and the protection of fundamental rights. Bulgaria and Greece abstained, while Denmark did not take part in the adoption of the Regulation and is not bound by it or subject to its application.

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