To make our justice system as effective as possible, EU law enforcement authorities need to be able to work and exchange information with partners outside the EU. Even as we do this however, it is important to ensure that the fundamental rights of people within the EU remain protected. On this basis, on 2 April 2019 the EDPS issued an Opinion on a Recommendation for a Council Decision that would authorise negotiations on an EU-US agreement on cross-border access to electronic evidence as part of judicial cooperation in criminal matters.
The proposed agreement would establish common rules on direct cooperation between law enforcement authorities and service providers in the EU and the US and address any conflicts between our laws on obtaining content and non-content data.
Our Opinion provided constructive and objective advice on the negotiating mandate of an EU-US agreement to lay down common rules on cross-border access to electronic evidence. We welcomed confirmation that the EU-US Umbrella Agreement would be referenced in the proposed agreement, and therefore fully applicable, in addition to other safeguards.
More specifically, we proposed that judicial authorities designated by the other Party to the agreement be involved as early as possible in the process of gathering electronic evidence. This would give these authorities the opportunity to review the compliance of any requests for evidence with fundamental rights, and to raise grounds for refusal if appropriate. We also recommended adding Article 16 of the Treaty on the Functioning of the EU, which establishes the fundamental right to the protection of personal data, as a substantive legal basis of the agreement.
The EDPS will remain available to provide further advice to the Commission during the negotiations, as needed. We look forward to being consulted on the final text of the draft agreement when it is ready.