Considerations on COM(2021)718 - Authorisation of Member States to sign the Second Additional Protocol to the Convention on Cybercrime on enhanced co-operation and disclosure of electronic evidence - Main contents
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| dossier | COM(2021)718 - Authorisation of Member States to sign the Second Additional Protocol to the Convention on Cybercrime on enhanced ... |
|---|---|
| document | COM(2021)718  |
| date | November 25, 2021 |
(2) The text of the Second Additional Protocol to the Convention on Cybercrime on enhanced co-operation and disclosure of electronic evidence (‘the Protocol') was adopted by the Council of Europe Committee of Ministers on 17 November 2021 and is envisaged to be opened for signature in March 2022.
(3) The provisions of the Protocol fall within an area covered to a large extent by common rules within the meaning of Article 3(2) TFEU, including instruments facilitating judicial cooperation in criminal matters, ensuring minimum standards of procedural rights, as well as data protection and privacy safeguards.
(4) The Commission also submitted legislative proposals for a Regulation on European Production and Preservation Orders for electronic evidence in criminal matters (COM(2018)225 final), and for a Directive laying down harmonised rules on the appointment of legal representatives for the purpose of gathering evidence in criminal proceedings introducing (COM(2018)226 final), binding cross-border European Production and Preservation Orders to be addressed directly to a representative of a service provider in another Member State.
(5) With its participation in the negotiations, on behalf of the Union, the Commission ensured compatibility of the Second Additional Protocol with relevant common European Union rules.
(6) A number of reservations, declarations, notifications and communications are relevant to ensure compatibility of the Protocol with Union law and policies, as well as the uniform application of the Protocol amongst EU Member States in their relation with non-EU Parties, and the effective application of the Protocol.
(7) Given that the Protocol provides for swift procedures that improve cross-border access to electronic evidence and a high level of safeguards, entry into force will contribute to the fight against cybercrime and other forms of crime at global level by facilitating cooperation between the EU Member State Parties and the non-EU Member State Parties to the Protocol, will ensure a high level of protection of individuals, and will address conflicts of law.
(8) Given that the Protocol provides for appropriate safeguards in line with the requirements for international transfers of personal data under Regulation (EU) 2016/679 and Directive (EU) 2016/680, its entry into force will contribute to the promotion of Union data protection standards at global level, facilitate data flows between the EU Member State Parties and the non-EU Member State Parties to the Protocol, and will ensure compliance of EU Member States with their obligations under Union data protection rules.
(9) The swift entry into force will furthermore also confirm the position of the Council of Europe Budapest Convention as the main multilateral framework for the fight against cybercrime.
(10) The European Union cannot become a Party to the Protocol, as both the Protocol and the Council of Europe Convention on Cybercrime are open to states only.
(11) Member States should therefore be authorised to sign the Protocol, acting jointly in the interests of the European Union.
(12) Member States are encouraged to sign the Protocol during the signing ceremony, or at the earliest possible date thereafter.
(13) The European Data Protection Supervisor was consulted in accordance with Article 42(1) of Regulation (EU) 2018/1725 of the European Parliament and of the Council and delivered an opinion on …
(14) [In accordance with Articles 1 and 2 of Protocol No 21 on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, and without prejudice to Article 4 of that Protocol, Ireland is not taking part in the adoption of this Decision and is not bound by it or subject to its application.]
[OR]
[In accordance with Articles 1 and 2 of Protocol No 21 on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, and without prejudice to Article 4 of that Protocol, Ireland has notified [, by its letter of ... ,] its wish to take part in the adoption and application of this Decision.]
(15) In accordance with Articles 1 and 2 of Protocol No 22 on the position of Denmark, annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, Denmark is not taking part in the adoption of this Decision and is not bound by it or subject to its application.