Considerations on COM(2019)71 - Authorisation of the participation in negotiations on a second Additional Protocol to the Council of Europe Convention on Cybercrime (CETS No. 185)

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dossier COM(2019)71 - Authorisation of the participation in negotiations on a second Additional Protocol to the Council of Europe Convention on ...
document COM(2019)71 EN
date February  5, 2019
 
(1) On 9 June 2017, the Committee of Parties to the Council of Europe Convention on Cybercrime (CETS No. 185) (T-CY) adopted a decision adopting the Terms of Reference for the preparation of a Second Additional Protocol to the Convention.

(2) The Terms of Reference for the Second Additional Protocol include the following elements for reflection: provisions for more effective mutual legal assistance (a simplified regime for mutual legal assistance requests for subscriber information; international production orders; direct cooperation between judicial authorities in mutual legal assistance requests; joint investigations and joint investigation teams; requests in English language; audio/video hearing of witnesses, victims and experts; emergency Mutual Legal Assistance procedures); provisions allowing for direct cooperation with service providers in other jurisdictions with regard to requests for subscriber information, preservation requests, and emergency requests; clearer framework and stronger safeguards for existing practices of transborder access to data; safeguards, including data protection requirements.

(3) The Union has adopted common rules that overlap to a large extent with the envisaged elements being considered for the Second Additional Protocol. This includes in particular a comprehensive set of instruments in order to facilitate judicial cooperation in criminal matters, 22  to ensure minimum standards of procedural rights 23 , as well as data protection and privacy safeguards 24 .

(4) The Commission also submitted legislative proposals for a Regulation on European Production and Preservation Orders for electronic evidence in criminal matters, and for a Directive laying down harmonised rules on the appointment of legal representatives for the purpose of gathering evidence in criminal proceedings introducing, binding cross-border European Production and Preservation Orders to be addressed directly to a representative of a service provider in another Member State 25 .

(5) Therefore, the Second Additional Protocol may affect common Union rules or alter their scope.

(6) Articles 82(1) and 16 of the Treaty on the Functioning of the Union specify Union competencies in the area of judicial cooperation in criminal matters as well as in data protection and privacy. In order to protect the integrity of Union law and to ensure that the rules of international law and Union law remain consistent, it is necessary that the Union participates in the negotiations on the Second Additional Protocol.

(7) The Second Additional Protocol should include the necessary safeguards for fundamental rights and freedoms, including the right in protection of personal data and privacy, the right to private and family life, home and communications recognised in article 7 of the Charter, the right to protection of personal data recognised in Article 8 of the Charter, the right to effective remedy and fair trial recognised in Article 47 of the Charter, the presumption of innocence and right of defence recognised in Article 48 of the Charter and principles of legality and proportionality of criminal offences and penalties recognised in Article 49 of the Charter. The Second Additional Protocol should be applied in accordance with those rights and principles.

(8) 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 26 and delivered an opinion on … 27 .