### 11. asks the commission to undertake a study to establish whether extending the scope of the eld to align it with other pieces of eu legislation , including the ecd , could limit short- and long-term damage to the environment , human health and air quality; asks the commission , furthermore , to assess whether the precautionary principle approach properly presupposes potentially dangerous risks or effects; ### 11. calls on the commission to harmonise and extend the scope of the eld to cover all damage to the environment including pure environmental damage , having regard to the rights of nature and future generations; calls for the categories of dangerous activities set out in annex iii eld to be expanded to include all activities that are potentially harmful to the environment and human health including air and the atmosphere; further adds that , with regard to land damage , the scope should be expanded beyond the simple reference to the ‘significant risk to human health’; asks more broadly the commission to extend the scope of the eld to align it with other pieces of eu legislation , including the industrial emissions directive and the ecd , in order to limit and ultimately avoid the materialisation of short- and long-term damage to the environment , human health and air quality; asks the commission , furthermore , to assess whether the precautionary principle approach properly presupposes potentially dangerous risks or effects;


### 11. asks the commission to undertake a study to establish whether extending the scope of the eld to align it with other pieces of eu legislation , including the ecd , could limit short- and long-term damage to the environment , human health and air quality; asks the commission , furthermore , to assess whether the precautionary principle approach properly presupposes potentially dangerous risks or effects; ### 11. calls the commission to extend the scope of the eld strict liability to non-annex iii activities to cover all environmental damage , as well as to human health , such as air pollution by cars violating eu car emissions legislation so as to improve the effectiveness of the legislation in implementing the ‘polluter pays’ principle; considers that such extension of scope would streamline the eld with other pieces of eu legislation on protecting human health and environment , including the ecd , and would facilitate adding provisions to the eld , such as including a requirement to carry out preventive measures and emergency remedial action , either in the directive itself or in national law implementing it; asks the commission , furthermore , to assess the potential damage that the so-called industry-led ‘innovation principle’ can have on the short and long term , and the danger it poses to the established precautionary principle and its ability to limit liability in environmental damage;


### 12. calls on the commission to assess whether it would be appropriate to introduce parental and chain liability for damage caused to human health and the environment20 ; ### 12. underlines the need to recognise the parental and chain liability of companies for the actions or omissions of their subsidiaries resulting in damage caused to human health and the environment , and the need for the implementation of a comprehensive monitoring system to provide competent authorities with an effective toolbox to monitor and enforce compliance with environmental and human rights requirements throughout their supply chains , particularly at local level , in line with/and in complement to the principle that eu undertakings have a duty of care and due diligence to prevent environmental harm caused by its subsidiaries active outside of the eu; underlines that such an enforcement system should allow ngos , affected communities and victims to interact and proactively participate in the monitoring process , notably by submitting evidence and data on alleged violations of environmental and human rights requirements;


### 12. calls on the commission to assess whether it would be appropriate to introduce parental and chain liability for damage caused to human health and the environment20 ; ### 12. calls on the commission to introduce a secondary liability regime , that is parental and chain liability for damage caused to human health and the environment20;


### 13. is of the opinion that the optional permit and state-of-the art defences should only be maintained when a company can prove that it could not have known about the danger of its activity (reversed burden of proof); ### 13. calls for the revised environmental liability regime to restrict the scope of application of the ‘permit defence’ and the ‘state of the art defence’ under the eld , also through a reversal of the burden of proof upon moderators , in order to promote the ‘polluter pays’ principle while improving the effectiveness of same environmental liability regime;


### 14. calls on the commission to align the eld with civil liability legislation for corporate boards in cases where a corporate board has taken irresponsible decisions causing environmental damage or when it was aware of , but did nothing to prevent , polluting activities carried out to maximise the profit of the company and increase the bonuses of its members21 ; ### 14. calls on the commission to align the eld with civil liability legislation for corporate boards in cases where a causal link can be established between a corporate board's action , omission or misconduct and the materialisation of an environmental damage as defined in the eld , inter alia where this damage results from polluting activities carried out to maximise the profit of the company and increase the bonuses of its members; the revised regime should ensure that not only companies as legal entities , but also individuals who have materially assisted , sponsored , or provided the company with financial , material , or technological support , knowing that their participation would contribute to the materialization of the pure environmental damage , be held personally liable , both to humans and to nature itself;


### 15. asks the commission to look into the possibility of introducing a mandatory financial security system (covering insurance , bank guarantees , company pools and bonds or funds) with a maximum threshold per case , aiming to prevent taxpayers from having to bear the costs resulting from remediation of environmental damage; asks the commission , in addition , to develop a harmonised eu methodology for calculating the maximum liability threshold , taking into account the activity and the impact on the environment; ### 15. calls on the commission to introduce a mandatory financial security system (covering insurance , bank guarantees , company pools and bonds or funds) with a maximum threshold per case , aiming to prevent taxpayers from having to bear the costs resulting from remediation of environmental damage; asks the commission , in addition , to develop a harmonised eu methodology for calculating the maximum liability threshold , taking into account the activity and the impact on the environment; calls on the commission to specify that the cost of remedying environmental damage should always be borne by the relevant operator , even if insolvent;


### 15. asks the commission to look into the possibility of introducing a mandatory financial security system (covering insurance , bank guarantees , company pools and bonds or funds) with a maximum threshold per case , aiming to prevent taxpayers from having to bear the costs resulting from remediation of environmental damage; asks the commission , in addition , to develop a harmonised eu methodology for calculating the maximum liability threshold , taking into account the activity and the impact on the environment; ### 15. calls on the commission to introduce a mandatory financial security system (covering insurance , bank guarantees , company pools and bonds or funds) with a maximum threshold per case , aiming to prevent taxpayers from having to bear the costs resulting from remediation of environmental damage; highlights that insurance cannot be designed to limit liability , but only to address costs of clean-up;


### 17. is of the opinion that in cases of extremely widespread pollution , not just environmental liability instruments , but a multitude of instruments , including administrative measures , financial penalties and in some cases criminal prosecution , should be applied to remedy the problem; ### 17. is of the opinion that in cases of extremely widespread pollution , not just environmental liability instruments , but a multitude of instruments , including administrative measures , financial penalties and in some cases criminal prosecution , should be applied to remedy the problem; notes that criminal penalties alone are often ineffective as they may lead to large dismissals of environmental cases especially in member states where there is no criminal liability of the corporate entity; also notes that in many member states administrative financial penalties are increasingly used; calls therefore on the commission to facilitate , and on member states to use , administrative fines as a complementary tool alongside criminal sanctions;


### 17. is of the opinion that in cases of extremely widespread pollution , not just environmental liability instruments , but a multitude of instruments , including administrative measures , financial penalties and in some cases criminal prosecution , should be applied to remedy the problem; ### 17. is of the opinion that in cases of serious diffuse pollution and of large-scale incidents , not just environmental liability instruments , but a multitude of instruments , including administrative measures , financial penalties and in some cases criminal prosecution , should be applied to remedy the problem;


### — having regard to the charter of fundamental rights of the european union (the charter) , and in particular articles 2 , 6 , 7 and 8 thereof , ### — having regard to the charter of fundamental rights of the european union (the charter) , and in particular articles 7 and 8 thereof ,


### — having regard to the europol terrorism situation and trend report 2019 , ### deleted


### — having regard to the christchurch call to action adopted by new zealand , france , the commission , technology companies and others to prevent the dissemination of information to terrorists and advocates of violent extremism , ### deleted


### b. whereas international agreements allowing europol and third countries to cooperate and exchange personal data should respect articles 2 , 6 , 7 and 8 of the charter and be necessary for and proportionate to the fulfilment of europol’s tasks; ### b. whereas international agreements allowing europol and third countries to cooperate and exchange personal data should respect the charter , particularly its article 7 and 8 , and authorise the transfer of personal data to an authority of a third country only insofar as such transfer is necessary and proportionate for the performance of europol's tasks;


### e. whereas europol has designated the threat level from jihadi terrorists as high , and whereas in 2018 , they were responsible for all deaths from terror attacks in the eu; ### deleted


### f. whereas europol has reported that law enforcement agencies used data exchange tools to foil , disrupt or investigate jihadi attacks on 24 occasions in 2018; ### deleted


### g. whereas the edps has supervised europol since 1 may 2017 , and also advises the eu institutions on policies and legislation relating to data protection; ### g. whereas the edps has supervised europol since 1 may 2017 , and also advises the eu institutions on policies and legislation relating to data protection , including when negotiating agreements in the law enforcement sector;


### h. whereas in the light of the 2019 christchurch lone gunman attack , future cooperation formalised under the agreement between the eu and new zealand could be essential for prevention and prosecution should other serious crimes be planned or perpetrated within the eu or worldwide; ### h. whereas future cooperation between europol and new zealand could be useful for the prevention , investigation and prosecution of serious crimes;


### 1. considers that cooperation with new zealand in the field of law enforcement could help the european union to further protect its security interests , and encourages it to work expeditiously to define the negotiating mandate for an agreement between the european union and new zealand on the exchange of personal data between the european union agency for law enforcement cooperation (europol) and the new zealand authorities competent for fighting serious crime and terrorism; ### 1. considers that the necessity and proportionality of cooperation with new zealand in the field of law enforcement for the european union's security interests is questionable , and has not been fully demonstrated by a thorough impact assessment; takes note of the council mandate to negotiate an agreement between the european union and new zealand on the exchange of personal data between the european union agency for law enforcement cooperation (europol) and the new zealand authorities competent for fighting serious crime and terrorism; calls on the commission to conduct a detailed assessment demonstrating the need for and added value provided by such an agreement prior to proceeding with negotiations; and calls on the commission to follow the additional recommendations set out in this resolution;


### 2. insists that the level of protection provided for in the agreement should be essentially equivalent to the level of protection provided for in eu law; ### 2. insists that the level of data protection provided for in the agreement should be essentially equivalent to the level of protection provided for in eu law , both in law and in practice; and insists further that if such a level of protection is not guaranteed , the agreement cannot be concluded;


### 3. believes that , since europol recognises that the terrorist threat level from returning foreign freedom fighters , radicalised european muslims and their families is high , it is essential for information exchange by all relevant law enforcement agencies , within the eu and globally , to be prioritised in order to fight serious crime and terrorism; therefore urges the member states to work faster to secure their borders; ### deleted


### 4. requests that the agreement contain the necessary safeguards and controls with respect to the protection of personal data; ### 4. insists that the agreement contain the necessary safeguards and controls with respect to the protection of personal data , as indicated by the edps in its opinion 1/2020 and in the directives for the negotiation included in the addendum to the council decision authorising the opening of negotiations; in addition , calls on the commission to respect the conditions set out in this resolution;


### 5. is of the opinion that , in line with the principle of purpose limitation , the future agreement should explicitly lay down a list of criminal offences in relation to which personal data can be exchanged; considers that this list should include the activities covered by such crimes , and the persons , groups and organisations likely to be affected by such transfers; ### 5. is of the opinion that , in line with the principle of purpose limitation , the future agreement should explicitly lay down a list of criminal offences in relation to which personal data can be exchanged; considers that this list should define in a clear and precise manner the activities covered by such crimes , and the persons , groups and organisations likely to be affected by such transfers;


### 6. insists that the agreement contain a clear and precise provision setting out the retention period for personal data that have been transferred and requiring the data to be erased at the end of that period; requests that procedural measures be set out in the agreement to ensure compliance; insists that , in exceptional cases , where there are duly justified reasons to store data for an extended period , past the end of the data retention period , these reasons and the accompanying documentation be communicated to europol and the edps; ### 6. insists that the agreement contain a clear and precise provision setting out the retention period for personal data that have been transferred and requiring the data to be erased at the end of that period; recommends that the agreement provides for a periodic review of the need for storage of the transferred personal data as well as other appropriate measures to ensure that the time limits are observed; insists that , in exceptional cases , where there are duly justified reasons to store data for an extended period , past the end of the data retention period , these reasons and the accompanying documentation be communicated to europol and the edps;


### 8. considers that the independent supervisory body should also have the power to decide to suspend or terminate the agreement in the event of a breach; considers that under the agreement , authorities should be allowed to continue to process any personal data falling within the scope of the agreement transferred prior to its suspension or termination; considers that a procedure for monitoring and periodically evaluating the agreement should be established in order to evaluate the partners’ compliance with the agreement; ### 8. considers it of the utmost importance that the independent supervisory body also have the power to decide to suspend or terminate the agreement in the event of a breach; considers that under the agreement , authorities should be allowed to continue to process any personal data falling within the scope of the agreement transferred prior to its suspension or termination; considers that a procedure for monitoring and periodically evaluating the agreement should be established in order to evaluate the partners’ compliance with the agreement;


### 9. considers that onward transfers of europol information from competent new zealand authorities to other authorities in new zealand , including for use in judicial proceedings , should only be allowed for the original purposes of the transfer by europol and should be made subject to appropriate conditions and safeguards , including prior authorisation by europol; points out that the same conditions should apply to onward transfers of europol information from competent new zealand authorities to third country authorities , with the additional requirement that data only be transferred to third countries to which europol is entitled to transfer personal data on the basis of article 25 (1) of regulation (eu) 2016/794; ### 9. considers that onward transfers of europol information from competent new zealand authorities to other authorities in new zealand , including for use in judicial proceedings , should only be allowed for the original purposes of the transfer by europol , should be made subject to appropriate conditions and safeguards , including prior authorisation by europol , and should be communicated to the independent authority and edps; points out that the same conditions should apply to onward transfers of europol information from competent new zealand authorities to third country authorities , with the additional requirement that data only be transferred to third countries to which europol is entitled to transfer personal data on the basis of article 25 (1) of regulation (eu) 2016/794;


### 11. considers that the international agreement with new zealand should enshrine the right of data subjects to information , rectification and erasure as provided for in other eu legislation on data protection; ### 11. considers that the international agreement with new zealand should lay down clear and detailed rules regarding the information that should be provided to the data subjects , which should include information about the applicable regime for eu data subjects to exercise their rights of access , rectification and erasure as provided for in other eu legislation on data protection;


### 1. gives its consent to the conclusion of the agreement; ### 1. refuses to give its consent to the conclusion of the agreement;


### a. whereas the commission has never assessed the implementation of the apd , despite its legal reporting obligation; ### a. whereas the commission has never assessed the implementation of the apd , despite its legal reporting obligation; whereas the commission nevertheless presented proposals in 2016 and 2020 for a revision of the apd , which is against the 2016 interinstitutional agreement on better-law making;


### 2. reiterates the importance of an evidence-based approach to guide coherent policy-making; ### 2. reiterates the importance of an evidence-based approach to guide policy-making;


### 3. highlights that border procedures constitute an exception to the legally defined rule that asylum applicants have a right to enter the territory of a member state and can be applied only in the exhaustive number of cases set out in the apd; points out that the eu legislators intended a narrow interpretation of those cases; deplores the fact that some member states apply border procedures much more extensively; ### 3. highlights that border procedures constitute an exception to the legally defined rule that asylum applicants have a right to enter the territory of a member state and can be applied only in the exhaustive number of cases set out in the apd; points out that the eu legislators intended a narrow interpretation of those cases; deplores the fact that some member states apply border procedures much more extensively; calls on member states using this possibility to restrict its scope to exceptional cases;


### 5. notes that several member states base border procedures on the legal fiction of non-entry , thus presuming that border procedures take place prior to a decision on the right of an applicant to enter the territory; ### 5. notes that several member states base border procedures on the legal fiction of non-entry , thus presuming that border procedures take place prior to a decision on the right of an applicant to enter the territory; stresses that the application of the legal fiction of non-entry has been discarded by the ecthr as irrelevant , inter alia , in the case of n.t. and n.d v. spain as the third country nationals had come within the jurisdiction of the state as soon as the authorities had effective control on the individuals concerned;


### 6. highlights that persons subject to a border procedure are , as a rule , de facto detained; ### 6. highlights that persons subject to a border procedure are , as a rule , de facto detained in all member states;


### 7. reiterates that member states must not hold a person in detention for the sole reason that he or she is an applicant , and recalls that applicants may only be detained where other less coercive measures cannot be applied; regrets that hardly any alternatives to detention have been developed and applied in border procedures; ### 7. reiterates that member states must not hold a person in detention for the sole reason that he or she is an applicant; condemns the systematic use by member states of de jure or de facto detention in border procedures; condemns the systematic fundamental rights violations and inhumane and degrading conditions of detention in transit zones , detention centers and hotspots at eu's external border , but also with regard to detention in police facilities at internal borders; calls on member states to ensure dignified receptions conditions in open centers;


### 8. considers it very problematic that some member states apply de facto border procedures without acknowledging them as such under national law , as this can result in insufficient safeguards against such detention; stresses that any detention should always be prescribed by law; ### 8. considers it very problematic that some member states apply de facto detention in border procedures without acknowledging them as such under national law; stresses that this has resulted in insufficient safeguards against such detention and the disregard by member states of the requirement of the reception conditions directive as well as the denial of their right to visit to members of parliament; stresses that if a member state chooses to resort to detention , this detention should always be prescribed by law; recalls that if conditions of detention are such that they are not in conformity with the ecthr case law , detention is unlawful and applicants should be released; calls in this regard for the need to have a judicial review of the restrictions on the liberty of applicants held at the border or in a transit zone and a right to visit for members of parliament , independently on how national law qualifies the situation;


### 10. is deeply concerned that , in the context of border procedures , numerous cases of persons being refused entry without their asylum claims being registered have been reported , at both external and internal borders; reiterates that automatic refusal of entry , refoulement and collective expulsions are prohibited under eu and international law; ### 10. is deeply concerned that , in the context of border procedures , numerous cases of persons being refused entry without their asylum claims being registered have been reported , at both external and internal borders; reiterates that automatic refusal of entry , refoulement and collective expulsions are prohibited under eu and international law; calls on the commission to act to ensure such practices are put to an end , including by launching infringements procedures and by recovering funds;


### 11. considers it important to establish independent monitoring bodies and calls on the member states to grant them access to border facilities to ensure the effective protection of fundamental rights and the systematic reporting of violations , in line with the fra’s guidance on border controls; ### 11. considers it important that existing independent national human rights institutions (ombudsperson institutions , nhris , npms) are able to monitor fundamental rights compliance at border areas and calls on the member states to grant them access to border facilities to ensure the effective protection of fundamental rights and the systematic reporting of violations , in line with the fra’s guidance on border controls; calls on independent national human rights institutions to cooperate in this monitoring with unhcr , ngos and the fra;


### exemption of unaccompanied minors and vulnerable applicants from the border procedure ### exemption of vulnerable applicants from the border procedure


### 13. stresses that in most of the member states examined , adequate vulnerability identification mechanisms are missing and , when present , often assess only visible vulnerability; ### 13. stresses that in most of the member states examined , adequate vulnerability identification mechanisms are missing and , when present , often assess only visible vulnerability; expresses strong concerns that this deprives vulnerable people of the special procedural guarantees and adequate support they are entitled to under eu law; calls for an unequivocal exemption of vulnerable applicants from border procedures and the urgent need to put into place adequate vulnerability identification mechanisms;


### 14. recalls that article 25(6)(b) of the apd prescribes a very limited set of circumstances allowing member states to process unaccompanied minors’ applications in a border procedure; highlights that the member states examined lack adequate age assessment methods; recommends that children and their families be exempted from border procedures; ### 14. recalls that article 25(6)(b) of the apd prescribes a very limited set of circumstances allowing member states to process unaccompanied minors’ applications in a border procedure; highlights that the member states examined lack adequate age assessment methods which raises questions as regards compliance with the best interests of the child; stresses that trafficking victims are being told to identify themselves as adults by traffickers and recommends that young individuals belonging to groups at high risk of trafficking should be protected by the authorities including through the conduction of an adequate age assessment; recommends that children and their families be exempted from border procedures;


### 15. notes that border procedures are fast-track procedures and recalls that , under article 43 of the apd , applicants in border procedures enjoy the same rights and guarantees as applicants in normal procedures; ### 15. notes that border procedures are fast-track procedures and recalls that , under article 43 of the apd , applicants in border procedures enjoy the same rights and guarantees as applicants in normal procedures; points out however that the short time limits leads to insufficient time for applicants to prepare for the interview and gather evidence in support of their applications , which will further impact the quality of the decisions issues and the respect of the principle of non refoulement; stresses that the practice has shown that determining authorities are under pressure as a result of their difficulty to meet the short deadlines;


### 15. notes that border procedures are fast-track procedures and recalls that , under article 43 of the apd , applicants in border procedures enjoy the same rights and guarantees as applicants in normal procedures; ### 15. notes that border procedures are fast-track procedures and recalls that , under article 43 of the apd , applicants in border procedures shall enjoy the same rights and guarantees as applicants in normal procedures;


### 16. highlights that significant problems regarding access to and the quality of legal assistance were reported in all the member states examined; stresses that free legal assistance is key to ensuring better-quality information in personal interviews and improving first-instance decision-making; ### 16. highlights that significant problems regarding access to and the quality of legal assistance were reported in all the member states examined; stresses that the right to free legal assistance should be guaranteed both in law and practice as soon as their asylum applications is lodged to ensuring the right to asylum and the principle of non refoulement , as enshrined in article 18 and 19 of the charter of fundamental rights; calls on member states to ensure the availability of sufficient and qualified legal advisers;


### 17. regrets that , within the framework of border procedures , many member states do not regulate access to ngos , which have a key role in securing applicants’ procedural rights; ### 17. regrets that , within the framework of border procedures , many member states do not ensure access to ngos , which have a key role in securing applicants’ procedural rights; calls on member states to guarantee effective access to ngos and to unhcr during the border procedure;


### 18. notes with concern that applicants are frequently given little to no information about border procedures and their rights and obligations; ### 18. notes with concern that applicants are frequently given little to no information about border procedures and their procedural rights and obligations; stresses the need for applicants to have timely access to adequate and comprehensible information about the criteria for granting international protection , which evidence and information is relevant in the context for these criteria and their procedural rights and obligations in a written and oral form and in a language they understand;


### 19. acknowledges that the apd leaves to the member states’ discretion whether appeals have an automatic suspensive effect; recalls , however , that the cjeu has recognised that an appeal against a return decision , whose enforcement may expose the third-country national concerned to a serious risk of refoulement , must have a suspensory effect; ### 19. acknowledges that the apd leaves to the member states’ discretion whether appeals have an automatic suspensive effect; recalls , however , that the cjeu has recognised that an appeal against a return decision , whose enforcement may expose the third-country national concerned to a serious risk of refoulement , must have a suspensive effect; calls for appeals in the border procedure to have an automatic suspensive effet to guarantee the principle of non refoulement and ensure that nobody is sent back to persecution before a final decision on their application has been taken;


### 20. stresses that border procedures are characterised by a combination of short procedural time limits and de facto detention , which might affect applicants’ ability to enjoy the guarantees enshrined in the apd; ### 20. stresses that border procedures are characterised by a combination of short procedural time limits and de facto detention , which affects applicants’ ability to enjoy the guarantees enshrined in the apd;


### 21. recommends that border procedures should be restricted to less complex cases , such as applicants who have been granted protection in other states or member states or who have raised issues that are not relevant to the examination of an asylum procedure , with their application remaining at the discretion of member states; ### 21. recommends that border procedures should be restricted to less complex cases , such as applicants who have been granted protection in other member states or who have raised issues that are not relevant to the examination of an asylum procedure , with their application remaining at the discretion of member states;


### 22. recalls that the safeguards laid down in chapter ii of the apd also apply in the case of large numbers of arrivals; notes with great concern that in these cases , border procedures create further fundamental rights challenges and efficiency concerns; ### 22. recalls that the safeguards laid down in chapter ii of the apd also apply in the case of large numbers of arrivals; notes with great concern that in these cases , border procedures create a high risk of fundamental rights violations; points out that carrying out border procedures in these cases will automatically hamper the ability of the member states to guarantee the safeguards of the apd and recommends not to apply this procedure;


### 23. shares the concerns expressed by the fra , the un high commissioner for refugees and the un special rapporteur on the human rights of migrants about respect for procedural guarantees and fundamental rights in fast-track border procedures used on the greek islands; ### 23. shares the concerns expressed by the fra , the un high commissioner for refugees and the un special rapporteur on the human rights of migrants about respect for procedural guarantees and fundamental rights in fast-track border procedures used on the greek islands; stresses that the identified deficiencies are inherent to the fast-track admissibility procedure that was chosen under the eu-turkey deal and the subsequent pressure of the commission to keep containing people on the greek islands and increase returns , including by reducing the list of people that could be categorised as vulnerable and reducing the time limit of the vulnerability assessment;


### 24. calls on member states to avoid using border procedures since the objectives of the apd and a fair asylum procedure cannot be guaranteed; calls on member states who nevertheless apply article 43 of the apd to ensure proper implementation in all its aspects; ### 24. calls on member states to not using border procedures since the objectives of the apd and a fair asylum procedure cannot be guaranteed; calls on member states who nevertheless apply article 43 of the apd to ensure proper implementation in all its aspects;


### 25. calls on the commission to effectively monitor the implementation of the apd and to take action in the event of non-compliance; ### 25. calls on the commission to effectively monitor the implementation of the apd and to take action in the event of non-compliance; welcomes in this regard the launching of infringement procedures against hungary and bulgaria; notes that other member states have not been complying with the apd and urges the commission to launch infringements against other countries that do not comply with the apd;


### 3. acknowledges the centre’s efforts to adopt a more agile work culture , including more orientation towards project management; notes that the centre has used four interim workers provided by a temporary work agency to compensate for the reduction of its statutory staff; deplores that the relevant framework contract did not explicitly require the full respect of union law and relevant national law and that the temporary workers were paid significantly less than the statutory staff; takes note that in its reply , the centre states that the applicable union and portuguese law have been respected and that the lower salary was due to a lower level of responsibilities; welcomes the centre’s intention to nevertheless reassess its policy for the use of temporary workers to further rationalise the latter in line with its operating needs and the relevant legal framework; ### 3. acknowledges the centre’s efforts to adopt a more agile work culture , including more orientation towards project management; notes that the centre has used four interim workers provided by a temporary work agency to compensate for the reduction of its statutory staff; deplores that the relevant framework contract did not explicitly require the full respect of union law and relevant national law and that the temporary workers were paid significantly less than the statutory staff; takes note that in its reply , the centre states that the applicable union and portuguese law have been respected and that the lower salary was due to a lower level of responsibilities; welcomes the centre’s intention to nevertheless reassess its policy for the use of temporary workers to further rationalise the latter in line with its operating needs and the relevant legal framework; urges the centre to employ as much as possible permanent staff;


### 1. upon receipt of the epoc , the addressee shall ensure that the requested data is transmitted directly to the issuing authority or the law enforcement authorities as indicated in the epoc at the latest within 10 days upon receipt of the epoc , unless the issuing authority indicates reasons for earlier disclosure. ### 1. upon receipt of the epoc , the executing authority shall recognise the epoc transmitted in accordance with this regulation , and ensure its execution in the same way and under the same modalities as if the production order concerned had been ordered by an authority of the executing state , unless that authority decides to invoke one of the grounds for non-recognition or non-execution provided by article 10a.


### (8) due to this lack of connection , judicial cooperation requests are often addressed to states which are hosts to a large number of service providers , but which have no other relation to the case at hand. furthermore , the number of requests has multiplied in view of increasingly used networked services that are borderless by nature. as a result , obtaining electronic evidence using judicial cooperation channels often takes a long time — longer than subsequent leads may be available. furthermore , there is no clear framework for cooperation with service providers , while certain third-country providers accept direct requests for non-content data as permitted by their applicable domestic law. as a consequence , all member states rely on the cooperation channel with service providers where available , using different national tools , conditions and procedures. in addition , for content data , some member states have taken unilateral action , while others continue to rely on judicial cooperation. ### (8) due to this lack of connection , judicial cooperation requests are often addressed to states which are hosts to a large number of service providers , but which have no other relation to the case at hand. furthermore , the number of requests has multiplied in view of increasingly used networked services that are borderless by nature. as a result , obtaining electronic evidence using judicial cooperation channels often takes a long time. furthermore , there is no clear framework for cooperation with service providers , while certain third-country providers accept direct requests for non-content data as permitted by their applicable domestic law. as a consequence , all member states rely on the cooperation channel with service providers where available , using different national tools , conditions and procedures. in addition , for content data , some member states have taken unilateral action , while others continue to rely on judicial cooperation.


### (9) the fragmented legal framework creates challenges for service providers seeking to comply with law enforcement requests. therefore there is a need to put forward a european legal framework for electronic evidence to impose an obligation on service providers covered by the scope of the instrument to respond directly to authorities without the involvement of a judicial authority in the member state of the service provider. ### (9) the fragmented legal framework creates challenges for service providers seeking to comply with law enforcement requests. therefore there is a need to put forward a clearer european legal framework for preserving and gathering electronic evidence.


### (10) orders under this regulation should be addressed to legal representatives of service providers designated for that purpose if a service provider established in the union has not designated a legal representative , the orders can be addressed to any establishment of this service provider in the union. this fall-back option serves to ensure the effectiveness of the system in case the service provider has not (yet) nominated a dedicated representative. ### (10) orders under this regulation should be addressed to the main establishment of the service providers or to legal representatives of service providers designated for that purpose.


### (12) this regulation respects fundamental rights and observes the principles recognised in particular by the charter of fundamental rights of the european union. these include the right to liberty and security , the respect for private and family life , the protection of personal data , the freedom to conduct a business , the right to property , the right to an effective remedy and to a fair trial , the presumption of innocence and right of defence , the principles of the legality and proportionality , as well as the right not to be tried or punished twice in criminal proceedings for the same criminal offence. in case the issuing member state has indications that parallel criminal proceedings may be ongoing in another member state , it shall consult the authorities of this member state in accordance with council framework decision 2009/948/jha29 . ### (12) this regulation respects fundamental rights as guaranteed by the european convention for the protection of human rights and fundamental freedoms and as they result from the constitutional traditions common to the member states , and observes the principles recognised in particular by the charter of fundamental rights of the european union. these include the right to liberty and security , the respect for private and family life , the protection of personal data , the freedom to conduct a business , the right to property , the right to an effective remedy and to a fair trial , the presumption of innocence and right of defence , the principles of the legality and proportionality , as well as the right not to be tried or punished twice in criminal proceedings for the same criminal offence. in case the issuing member state has indications that parallel criminal proceedings may be ongoing in another member state , it shall consult the authorities of this member state in accordance with council framework decision 2009/948/jha29 .


### (15) this instrument lays down the rules under which a competent judicial authority in the european union may order a service provider offering services in the union to produce or preserve electronic evidence through a european production or preservation order. this regulation is applicable in all cases where the service provider is established or represented in another member state. for domestic situations where the instruments set out by this regulation cannot be used , the regulation should not limit the powers of the national competent authorities already set out by national law to compel service providers established or represented on their territory. ### (15) this instrument lays down the rules under which a competent judicial authority in the european union may order a service provider offering services in the union to produce or preserve electronic evidence through a european production or preservation order. this regulation is applicable in all cases where the service provider is established or represented in another member state.


### (17) in many cases , data is no longer stored or processed on a user's device but made available on cloud-based infrastructure for access from anywhere. to run those services , service providers do not need to be established or to have servers in a specific jurisdiction. thus , the application of this regulation should not depend on the actual location of the provider`s establishment or of the data processing or storage facility. ### (17) in many cases , data is no longer stored or processed on a user's device but made available on cloud-based infrastructure for access from anywhere. to run those services , service providers do not need to be established or to have servers in a specific jurisdiction.


### (18) providers of internet infrastructure services related to the assignment of names and numbers , such as domain name registrars and registries and privacy and proxy service providers , or regional internet registries for internet protocol (‘ip’) addresses , are of particular relevance when it comes to the identification of actors behind malicious or compromised web sites. they hold data that is of particular relevance for criminal proceedings as it can allow for the identification of an individual or entity behind a web site used in criminal activity , or the victim of criminal activity in the case of a compromised web site that has been hijacked by criminals. ### (18) providers of internet infrastructure services related to the assignment of names and numbers , such as domain name registrars and registries , or regional internet registries for internet protocol (‘ip’) addresses , are of particular relevance when it comes to the identification of actors behind malicious or compromised web sites.


### (19) this regulation regulates gathering of stored data only , that is , the data held by a service provider at the time of receipt of a european production or preservation order certificate. it does not stipulate a general data retention obligation , nor does it authorise interception of data or obtaining to data stored at a future point in time from the receipt of a production or preservation order certificate. data should be provided regardless of whether it is encrypted or not. ### (19) this regulation regulates gathering of stored data only , that is , the data held by a service provider at the time of receipt of a european production or preservation order certificate. it does not stipulate a general data retention obligation , nor does it authorise interception of data or obtaining to data stored at a future point in time from the receipt of a production or preservation order certificate.


### (20) the categories of data this regulation covers include subscriber data , access data , transactional data (these three categories being referred to as ‘non-content data’) and content data. this distinction , apart from the access data , exists in the legal laws of many member states and also in the current us legal framework that allows service providers to share non-content data with foreign law enforcement authorities on a voluntary basis. ### (20) the categories of data this regulation covers include subscriber data , traffic data and content data.


### (21) it is appropriate to single out access data as a specific data category used in this regulation. access data is pursued for the same objective as subscriber data , in other words to identify the underlying user , and the level of interference with fundamental rights is similar to that of subscriber data. access data is typically recorded as part of a record of events (in other words a server log) to indicate the commencement and termination of a user access session to a service. it is often an individual ip address (static or dynamic) or other identifier that singles out the network interface used during the access session. if the user is unknown , it often needs to be obtained before subscriber data related to that identifier can be ordered from the service provider. ### deleted


### (22) transactional data , on the other hand , is generally pursued to obtain information about the contacts and whereabouts of the user and may be served to establish a profile of an individual concerned. that said , access data cannot by itself serve to establish a similar purpose , for example it does not reveal any information on interlocutors related to the user. hence this proposal introduces a new category of data , which is to be treated like subscriber data if the aim of obtaining this data is similar. ### (22) traffic data is generally pursued to obtain information about the contacts and whereabouts of the user and may be served to establish a profile of an individual concerned.


### (23) all data categories contain personal data , and are thus covered by the safeguards under the union data protection acquis , but the intensity of the impact on fundamental rights varies , in particular between subscriber data and access data on the one hand and transactional data and content data on the other hand. while subscriber data and access data are useful to obtain first leads in an investigation about the identity of a suspect , transactional and content data are the most relevant as probative material. it is therefore essential that all these data categories are covered by the instrument. because of the different degree of interference with fundamental rights , different conditions are imposed for obtaining subscriber and access data on the one hand , and transactional and content data on the other. ### (23) all data categories contain personal data , and are thus covered by the safeguards under the union data protection acquis , but the intensity of the impact on fundamental rights varies , in particular between subscriber data on the one hand and traffic data and content data on the other hand. while subscriber data are useful to obtain first leads in an investigation about the identity of a suspect , traffic and content data are the most relevant as probative material. it is therefore essential that all these data categories are covered by the instrument. because of the different degree of interference with fundamental rights , different conditions are imposed for obtaining subscriber data on the one hand , and traffic and content data on the other.


### (26) this regulation should apply to service providers offering services in the union , and the orders provided for by this regulation may be issued only for data pertaining to services offered in the union. services offered exclusively outside the union are not in the scope of this regulation , even if the service provider is established in the union. ### (26) this regulation should apply to service providers offering services in the union , and the orders provided for by this regulation may be issued only for data pertaining to services offered in the union. services offered exclusively outside the union are not in the scope of this regulation.


### (27) the determination whether a service provider offers services in the union requires an assessment whether the service provider enables legal or natural persons in one or more member states to use its services. however , the mere accessibility of an online interface as for instance the accessibility of the service provider’s or an intermediary’s website or of an email address and of other contact details in one or more member states taken in isolation should not be a sufficient condition for the application of this regulation. ### (27) the determination whether a service provider offers services in the union requires an assessment whether the service provider intentionally enables legal or natural persons in one or more member states to use its services. however , the mere accessibility of an online interface as for instance the accessibility of the service provider’s or an intermediary’s website or of an email address and of other contact details in one or more member states taken in isolation , or the use of a language generally used in the third country where the controller is established , should not be a sufficient condition for the application of this regulation.


### (28) a substantial connection to the union should also be relevant to determine the ambit of application of the present regulation. such a substantial connection to the union should be considered to exist where the service provider has an establishment in the union. in the absence of such an establishment , the criterion of a substantial connection should be assessed on the basis of the existence of a significant number of users in one or more member states , or the targeting of activities towards one or more member states. the targeting of activities towards one or more member states can be determined on the basis of all relevant circumstances , including factors such as the use of a language or a currency generally used in that member state , or the possibility of ordering goods or services. the targeting of activities towards a member state could also be derived from the availability of an application (‘app’) in the relevant national app store , from providing local advertising or advertising in the language used in that member state , or from the handling of customer relations such as by providing customer service in the language generally used in that member state. a substantial connection is also to be assumed where a service provider directs its activities towards one or more member states as set out in article 17(1)(c) of regulation 1215/2012 on jurisdiction and the recognition and enforcement of judgements in civil and commercial matters.36 on the other hand , provision of the service in view of mere compliance with the prohibition to discriminate laid down in regulation (eu) 2018/30237 cannot be , on that ground alone , be considered as directing or targeting activities towards a given territory within the union. ### (28) a substantial connection to the union should also be relevant to determine the ambit of application of the present regulation. such a substantial connection to the union should be considered to exist where the service provider has an establishment in the union. in the absence of such an establishment , the criterion of a substantial connection should be assessed on the basis of the existence of a significant number of users in one or more member states , or the targeting of activities towards one or more member states. the targeting of activities towards one or more member states can be determined on the basis of all relevant circumstances , including factors such as the use of a language or a currency generally used in that member state , or the possibility of ordering goods or services. the targeting of activities towards a member state could also be derived from providing local advertising or advertising in the language used in that member state , or from the handling of customer relations such as by providing customer service in the language generally used in that member state. a substantial connection is also to be assumed where a service provider directs its activities towards one or more member states as set out in article 17(1)(c) of regulation 1215/2012 on jurisdiction and the recognition and enforcement of judgements in civil and commercial matters.36 on the other hand , provision of the service in view of mere compliance with the prohibition to discriminate laid down in regulation (eu) 2018/30237 cannot be , on that ground alone , be considered as directing or targeting activities towards a given territory within the union.


### (29) a european production order should only be issued if it is necessary and proportionate. the assessment should take into account whether the order is limited to what is necessary to achieve the legitimate aim of obtaining the relevant and necessary data to serve as evidence in the individual case only. ### (29) a european production order should only be issued if it is necessary and proportionate taking into account the rights of the suspected and accused persons and the seriousness of the offence. the assessment should take into account whether the order is limited to what is necessary to achieve the legitimate aim of obtaining the relevant and necessary data to serve as evidence in the individual case only.


### (30) when a european production or preservation order is issued , there should always be a judicial authority involved either in the process of issuing or validating the order. in view of the more sensitive character of transactional and content data , the issuing or validation of european production orders for production of these categories requires review by a judge. as subscriber and access data are less sensitive , european production orders for their disclosure can in addition be issued or validated by competent prosecutors. ### (30) when a european production or preservation order is issued , there should always be a judicial authority involved either in the process of issuing or validating the order. in view of the more sensitive character of traffic data , the issuing or validation of european production orders for production of these categories requires review by a judge. as subscriber are less sensitive , european production orders for their disclosure can in addition be issued or validated by competent prosecutors.


### (31) for the same reason , a distinction has to be made regarding the material scope of this regulation: orders to produce subscriber data and access data can be issued for any criminal offence , whereas access to transactional and content data should be subject to stricter requirements to reflect the more sensitive nature of such data. a threshold allows for a more proportionate approach , together with a number of other ex ante and ex post conditions and safeguards provided for in the proposal to ensure respect for proportionality and the rights of the persons affected. at the same time , a threshold should not limit the effectiveness of the instrument and its use by practitioners. allowing the issuing of orders for investigations that carry at least a three-year maximum sentence limits the scope of the instrument to more serious crimes , without excessively affecting the possibilities of its use by practitioners. it excludes from the scope a significant number of crimes which are considered less serious by member states , as expressed in a lower maximum penalty. it also has the advantage of being easily applicable in practice. ### (31) for the same reason , a distinction has to be made regarding the material scope of this regulation: orders to produce subscriber data can be issued for any criminal offence , whereas access to traffic and content data should be subject to stricter requirements to reflect the more sensitive nature of such data. a threshold allows for a more proportionate approach , together with a number of other ex ante and ex post conditions and safeguards provided for in the proposal to ensure respect for proportionality and the rights of the persons affected. at the same time , a threshold should not limit the effectiveness of the instrument and its use by practitioners. allowing the issuing of orders for investigations that carry at least a five-year maximum sentence limits the scope of the instrument to more serious crimes , without excessively affecting the possibilities of its use by practitioners. it excludes from the scope a significant number of crimes which are considered less serious by member states , as expressed in a lower maximum penalty. it also has the advantage of being easily applicable in practice.


### (32) there are specific offences where evidence will typically be available exclusively in electronic form , which is particularly fleeting in nature. this is the case for cyber-related crimes , even those which might not be considered serious in and of themselves but which may cause extensive or considerable damage , in particular including cases of low individual impact but high volume and overall damage. for most cases where the offence has been committed by means of an information system , applying the same threshold as for other types of offences would predominantly lead to impunity. this justifies the application of the regulation also for those offences where the penalty frame is less than 3 years of imprisonment. additional terrorism related offences as described in the directive 2017/541/eu do not require the minimum maximum threshold of 3 years. ### (32) there are specific offences where evidence will typically be available exclusively in electronic form. this is the case for computer-enabled crimes , even those which might not be considered serious in and of themselves but which may cause extensive or considerable damage , in particular including cases of low individual impact but high volume and overall damage. for most cases where the offence has been committed by means of an information system , applying the same threshold as for other types of offences would predominantly lead to impunity. this justifies the application of the regulation also for those offences where the penalty frame is less than 5 years of imprisonment.


### (34) in cases where the data sought is stored or processed as part of an infrastructure provided by a service provider to a company or another entity other than natural persons , typically in case of hosting services , the european production order should only be used when other investigative measures addressed to the company or the entity are not appropriate , especially if this would create a risk to jeopardise the investigation. this is of relevance in particular when it comes to larger entities , such as corporations or government entities , that avail themselves of the services of service providers to provide their corporate it infrastructure or services or both. the first addressee of a european production order , in such situations , should be the company or other entity. this company or other entity may not be a service provider covered by the scope of this regulation. however , for cases where addressing that entity is not opportune , for example because it is suspected of involvement in the case concerned or there are indications for collusion with the target of the investigation , competent authorities should be able to address the service provider providing the infrastructure in question to provide the requested data. this provision does not affect the right to order the service provider to preserve the data. ### deleted


### (35) immunities and privileges , which may refer to categories of persons (such as diplomats) or specifically protected relationships (such as lawyer-client privilege) , are referred to in other mutual recognition instruments such as the european investigation order. their range and impact differ according to the applicable national law that should be taken into account at the time of issuing the order , as the issuing authority may only issue the order if a similar order would be available in a comparable domestic situation. in addition to this basic principle , immunities and privileges which protect access , transactional or content data in the member state of the service provider should be taken into account as far as possible in the issuing state in the same way as if they were provided for under the national law of the issuing state. this is relevant in particular should the law of the member state where the service provider or its legal representative is addressed provide for a higher protection than the law of the issuing state. the provision also ensures respect for cases where the disclosure of the data may impact fundamental interests of that member state such as national security and defence. as an additional safeguard , these aspects should be taken into account not only when the order is issued , but also later , when assessing the relevance and admissibility of the data concerned at the relevant stage of the criminal proceedings , and if an enforcement procedure takes place , by the enforcing authority. ### (35) immunities and privileges , which may refer to categories of persons (such as diplomats) or specifically protected relationships (such as lawyer-client privilege) , are referred to in other mutual recognition instruments such as the european investigation order. their range and impact differ according to the applicable national law that should be taken into account at the time of issuing the order , as the issuing authority may only issue the order if a similar order would be available in a comparable domestic situation.


### (36) the european preservation order may be issued for any offence. its aim is to prevent the removal , deletion or alteration of relevant data in situations where it may take more time to obtain the production of this data , for example because judicial cooperation channels will be used. ### (36) the european preservation order may be issued for any offence. its aim is to prevent the removal , deletion or alteration of relevant data in situations where it may take more time to obtain the production of this data.


### (37) european production and preservation orders should be addressed to the legal representative designated by the service provider. in the absence of a designated legal representative , orders can be addressed to an establishment of the service provider in the union. this can be the case where there is no legal obligation for the service provider to nominate a legal representative. in case of non-compliance by the legal representative in emergency situations , the european production or preservation order may also be addressed to the service provider alongside or instead of pursuing enforcement of the original order according to article 14. in case of non-compliance by the legal representative in non-emergency situations , but where there are clear risks of loss of data , a european production or preservation order may also be addressed to any establishment of the service provider in the union. because of these various possible scenarios , the general term ‘addressee’ is used in the provisions. where an obligation , such as on confidentiality , applies not only to the addressee , but also to the service provider if it is not the addressee , this is specified in the respective provision. ### (37) european production and preservation orders should be addressed to the main establishment of the service provider or , if established outside the eu , to the legal representative designated by the service provider. because of these various possible scenarios , the general term ‘addressee’ is used in the provisions. where an obligation , such as on confidentiality , applies not only to the addressee , but also to the service provider if it is not the addressee , this is specified in the respective provision.


### (38) the european production and european preservation orders should be transmitted to the service provider through a european production order certificate (epoc) or a european preservation order certificate (epoc-pr) , which should be translated. the certificates should contain the same mandatory information as the orders , except for the grounds for the necessity and proportionality of the measure or further details about the case to avoid jeopardising the investigations. but as they are part of the order itself , they allow the suspect to challenge it later during the criminal proceedings. where necessary , a certificate needs to be translated into (one of) the official language(s) of the member state of the addressee , or into another official language that the service provider has declared it will accept. ### (38) the european production and european preservation orders should be transmitted to the service provider through a european production order certificate (epoc) or a european preservation order certificate (epoc-pr) , which should be translated. the certificates should contain the same mandatory information as the orders. but as they are part of the order itself , they allow the suspect to challenge it later during the criminal proceedings. where necessary , a certificate needs to be translated into (one of) the official language(s) of the member state of the addressee , or into another official language that the service provider has declared it will accept.


### (41) in order to allow service providers to address formal problems , it is necessary to set out a procedure for the communication between the service provider and the issuing judicial authority in cases where the epoc might be incomplete or contains manifest errors or not enough information to execute the order. moreover , should the service provider not provide the information in an exhaustive or timely manner for any other reason , for example because it thinks there is a conflict with an obligation under the law of a third country , or because it thinks the european production order has not been issued in accordance with the conditions set out by this regulation , it should go back to the issuing authorities and provide the opportune justifications. the communication procedure thus should broadly allow for the correction or reconsideration of the epoc by the issuing authority at an early stage. to guarantee the availabilty of the data , the service provider should preserve the data if they can identify the data sought. ### deleted


### (42) upon receipt of a european preservation order certificate (‘epoc-pr’) , the service provider should preserve requested data for a maximum of 60 days unless the issuing authority informs the service provider that it has launched the procedure for issuing a subsequent request for production , in which case the preservation should be continued. the 60 day period is calculated to allow for the launch of an official request. this requires that at least some formal steps have been taken , for example by sending a mutual legal assistance request to translation. following receipt of that information , the data should be preserved as long as necessary until the data is produced in the framework of a subsequent request for production. ### (42) upon receipt of a european preservation order certificate (‘epoc-pr’) , the service provider should preserve requested data for a maximum of 30 days unless the issuing authority informs the service provider that it has launched the procedure for issuing a subsequent request for production , in which case the preservation should be continued. the 30 day period is calculated to allow for the launch of an official request. this requires that at least some formal steps have been taken , for example by sending a mutual legal assistance request to translation. following receipt of that information , the data should be preserved as long as necessary until the data is produced in the framework of a subsequent request for production.


### (43) service providers and their legal representatives should ensure confidentiality and when requested by the issuing authority refrain from informing the person whose data is being sought in order to safeguard the investigation of criminal offences , in compliance with article 23 of regulation (eu) 2016/67938 . however , user information is an essential element in enabling review and judicial redress and should be provided by the authority if the service provider was asked not to inform the user , where there is no risk of jeopardising ongoing investigations , in accordance with the national measure implementing article 13 of directive (eu) 2016/68039 . ### (43) user information is an essential element in enabling review and judicial redress and should be provided by the authority or the service provider unless there is a risk of jeopardising ongoing investigations , in accordance with article 13 of directive (eu) 2016/68039 and article 23 of regulation (eu) 2016/679.


### (44) in case of non-compliance by the addressee , the issuing authority may transfer the full order including the reasoning on necessity and proportionality , accompanied by the certificate , to the competent authority in the member state where the addressee of the certificate resides or is established. this member state should enforce it in accordance with its national law. member states should provide for the imposition of effective , proportionate and deterrent pecuniary sanctions in case of infringements of the obligations set up by this regulation. ### (44) the issuing authority shall transfer the full order including the reasoning on necessity and proportionality , accompanied by the certificate , to the competent authority in the member state where the addressee of the certificate resides or is established. this member state should recognize and execute it in accordance with its national law. member states should provide for the imposition of effective , proportionate and deterrent pecuniary sanctions in case of infringements of the obligations set up by this regulation.


### (45) the enforcement procedure is a procedure where the addressee can oppose the enforcement based on certain restricted grounds. the enforcing authority can refuse to recognise and enforce the order based on the same grounds , or if immunities and privileges under its national law apply or the disclosure may impact its fundamental interests such as national security and defence. the enforcing authority should consult the issuing authority before refusing to recognise or enforce the order , based on these grounds. in case of non-compliance , authorities can impose sanctions. these sanctions should be proportionate also in view of specific circumstances such as repeated or systemic non-compliance. ### deleted


### (48) to this end , whenever the addressee considers that the european production order in the specific case would entail the violation of a legal obligation stemming from the law of a third country , it should inform the issuing authority by way of a reasoned objection , using the forms provided. the issuing authority should then review the european production order in light of the reasoned objection , taking into account the same criteria that the competent court would have to follow. where the authority decides to uphold the order , the procedure should be referred to the competent court , as notified by the relevant member state , which then reviews the order. ### (48) judicial cooperation based on international agreements is the most appropriate way to request electronic evidence when conflicts of law with third countries arise. if that is not available , this regulation provides for a procedure that involves executing authority , issuing authority , and the competent authority in the third country. to this end , whenever the executing authority considers that the european production order or the european preservation order in the specific case would entail the violation of a legal obligation stemming from the law of a third country , it should inform the issuing authority by way of a reasoned objection , using the forms provided. the issuing authority should then review the european production order in light of the reasoned objection , taking into account the same criteria that the competent court would have to follow. where the authority decides to uphold the order , the procedure should be referred to the executing authority , which then reviews the order.


### (49) in determining the existence of a conflicting obligation in the specific circumstances of the case under examination , the competent court should rely on appropriate external expertise where needed , for example if the review raises questions on the interpretation of the law of the third country concerned. this could include consulting the central authorities of that country. ### (49) in determining the existence of a conflicting obligation in the specific circumstances of the case under examination , the competent court should rely on appropriate external expertise where needed , for example if the review raises questions on the interpretation of the law of the third country concerned. this should include consulting the competent authorities of that country.


### (51) where conflicting obligations exist , the court should determine whether the conflicting provisions of the third country prohibit disclosure of the data concerned on the grounds that this is necessary to either protect the fundamental rights of the individuals concerned or the fundamental interests of the third country related to national security or defence. in carrying out this assessment , the court should take into account whether the third country law , rather than being intended to protect fundamental rights or fundamental interests of the third country related to national security or defence , manifestly seeks to protect other interests or is being aimed to shield illegal activities from law enforcement requests in the context of criminal investigations. where the court concludes that conflicting provisions of the third country prohibit disclosure of the data concerned on the grounds that this is necessary to either protect the fundamental rights of the individuals concerned or the fundamental interests of the third country related to national security or defence , it should consult the third country via its central authorities , which are already in place for mutual legal assistance purposes in most parts of the world. it should set a deadline for the third country to raise objections to the execution of the european production order; in case the third country authorities do not respond within the (extended) deadline despite a reminder informing them of the consequences of not providing a response , the court upholds the order. if the third country authorities object to disclosure , the court should lift the order. ### deleted


### (52) in all other cases of conflicting obligations , unrelated to fundamental rights of the individual or fundamental interests of the third country related to national security or defence , the court should take its decision on whether to uphold the european production order by weighing a number of elements which are designed to ascertain the strength of the connection to either of the two jurisdictions involved , the respective interests in obtaining or instead preventing disclosure of the data , and the possible consequences for the service provider of having to comply with the order. importantly for cyber-related offences , the place where the crime was committed covers both the place(s) where the action was taken and the place(s) where the effects of the offence materialised. ### deleted


### (54) it is essential that all persons whose data are requested in criminal investigations or proceedings have access to an effective legal remedy , in line with article 47 of the charter of fundamental rights of the european union. for suspects and accused persons , the right to an effective remedy should be exercised during the criminal proceedings. this may affect the admissibility , or as the case may be , the weight in the proceedings , of the evidence obtained by such means. in addition , they benefit from all procedural guarantees applicable to them , such as the right to information. other persons , who are not suspects or accused persons , should also have a right to an effective remedy. therefore , as a minimum , the possibility to challenge the legality of a european production order , including the necessity and the proportionality of the order , should be provided. this regulation should not limit the possible grounds to challenge the legality of the order. these remedies should be exercised in the issuing state in accordance with national law. rules on interim relief should be governed by national law. ### (54) it is essential that all persons whose data are requested in criminal investigations or proceedings have access to an effective legal remedy , in line with article 47 of the charter of fundamental rights of the european union. for suspects and accused persons , the right to an effective remedy should be exercised during the criminal proceedings. this may affect the admissibility of the evidence obtained by such means. in addition , they benefit from all procedural guarantees applicable to them , such as the right to information. other persons , who are not suspects or accused persons , should also have a right to an effective remedy. therefore , as a minimum , the possibility to challenge the legality of a european production order , including the necessity and the proportionality of the order , should be provided. this regulation should not limit the possible grounds to challenge the legality of the order. these remedies should be exercised in the issuing state as well as in the executing state in accordance with national law. rules on interim relief should be governed by national law.


### (55) in addition , during the enforcement procedure and subsequent legal remedy , the addressee may oppose the enforcement of a european production or preservation order on a number of limited grounds , including it not being issued or validated by a competent authority or it being apparent that it manifestly violates the charter of fundamental rights of the european union or is manifestly abusive. for example , an order requesting the production of content data pertaining to an undefined class of people in a geographical area or with no link to concrete criminal proceedings would ignore in a manifest way the conditions for issuing a european production order. ### (55) this regulation provides for a limited list of grounds for non-recognition that the executing authority can apply when deciding on the recognition of an order. in addition , the service provider could oppose the enforcement of a european production or preservation order on a number of limited grounds , including it not being issued or validated by a competent authority or if there are substantial grounds to believe that it violates fundamental rights or is manifestly abusive. for example , an order requesting the production of content data pertaining to an undefined class of people in a geographical area or with no link to concrete criminal proceedings would ignore in a manifest way the conditions for issuing a european production order or an european preservation order.


### (60) in order to effectively address a possible need for improvement regarding the content of the epocs and epoc-prs and of the form to be used to provide information on the impossibility to execute the epoc or epoc-pr , the power to adopt acts in accordance with article 290 of the treaty on the functioning of the european union should be delegated to the commission to amend annexes i , ii and iii to this regulation. it is of particular importance that the commission carry out appropriate consultations during its preparatory work , including at expert level , and that those consultations be conducted in accordance with the principles laid down in the interinstitutional agreement of 13 april 2016 on better law-making40 . in particular , to ensure equal participation in the preparation of delegated acts , the european parliament and the council receive all documents at the same time as member states' experts , and their experts systematically have access to meetings of commission expert groups dealing with the preparation of delegated acts. ### deleted


### 1. this regulation lays down the rules under which an authority of a member state may order a service provider offering services in the union , to produce or preserve electronic evidence , regardless of the location of data. this regulation is without prejudice to the powers of national authorities to compel service providers established or represented on their territory to comply with similar national measures. ### 1. this regulation lays down the rules under which an authority of a member state may order a service provider offering services in the union , to preserve electronic evidence and to order an authority of another member state to compel a service provider established or represented on their territory to produce electronic evidence , regardless of the location of data.


### (1) ‘european production order’ means a binding decision by an issuing authority of a member state compelling a service provider offering services in the union and established or represented in another member state , to produce electronic evidence; ### (1) ‘european production order’ means a judicial decision which has been issued or validated by a judicial authority of a member state to have electronic evidence produced by a service provider offering services in the union and established or represented in another member state;


### (2) ‘european preservation order' means a binding decision by an issuing authority of a member state compelling a service provider offering services in the union and established or represented in another member state , to preserve electronic evidence in view of a subsequent request for production; ### (2) ‘european preservation order' means a judicial decision which has been issued or validated by a judicial authority of a member state compelling a service provider offering services in the union and established or represented in another member state , to preserve electronic evidence in view of a subsequent request for production;


### (3) ‘service provider’ means any natural or legal person that provides one or more of the following categories of services: ### (3) ‘service provider’ means any natural or legal person that provides one or more of the following categories of services and acts as a data controller within the meaning of regulation (eu) 2016/679:


### information society services as defined in point (b) of article 1(1) of directive (eu) 2015/1535 of the european parliament and of the council44 for which the storage of data is a defining component of the service provided to the user , including social networks , online marketplaces facilitating transactions between their users , and other hosting service providers; ### information society services as defined in point (b) of article 1(1) of directive (eu) 2015/1535 of the european parliament and of the council44 for which the storage of data is a defining component of the service provided to the user;


### internet domain name and ip numbering services such as ip address providers , domain name registries , domain name registrars and related privacy and proxy services; ### internet domain name and ip numbering services such as ip address providers , domain name registries and domain name registrars;


### (4) ‘offering services in the union’ means: ### (4) ‘offering services in the union’ means intentionally enabling legal or natural persons in one or more member state(s) to use the services referred to in point (3).


### enabling legal or natural persons in one or more member state(s) to use the services listed under (3) above; and ### deleted


### having a substantial connection to the member state(s) referred to in point (a); ### deleted


### (6) ‘electronic evidence’ means evidence stored in electronic form by or on behalf of a service provider at the time of receipt of a production or preservation order certificate , consisting in stored subscriber data , access data , transactional data and content data; ### (6) ‘electronic evidence’ means information stored in electronic form by or on behalf of a service provider at the time of receipt of a production or preservation order certificate , consisting in stored subscriber data , traffic data and content data;


### (7) ‘subscriber data’ means any data pertaining to: ### (7) ‘subscriber data’ means any data collected in the normal course of business pertaining to:


### the type of service and its duration including technical data and data identifying related technical measures or interfaces used by or provided to the subscriber or customer , and data related to the validation of the use of service , excluding passwords or other authentication means used in lieu of a password that are provided by a user , or created at the request of a user; ### deleted


### the type of service and its duration including technical data and data identifying related technical measures or interfaces used by or provided to the subscriber or customer , and data related to the validation of the use of service , excluding passwords or other authentication means used in lieu of a password that are provided by a user , or created at the request of a user; ### the type of service provided;


### (8) ‘access data’ means data related to the commencement and termination of a user access session to a service , which is strictly necessary for the sole purpose of identifying the user of the service , such as the date and time of use , or the log-in to and log-off from the service , together with the ip address allocated by the internet access service provider to the user of a service , data identifying the interface used and the user id. this includes electronic communications metadata as defined in point (g) of article 4(3) of [regulation concerning the respect for private life and the protection of personal data in electronic communications]; ### (8) ‘traffic data’ means data collected in the normal course of business related to:


### (9) ‘transactional data’ means data related to the provision of a service offered by a service provider that serves to provide context or additional information about such service and is generated or processed by an information system of the service provider , such as the source and destination of a message or another type of interaction , data on the location of the device , date , time , duration , size , route , format , the protocol used and the type of compression , unless such data constitues access data. this includes electronic communications metadata as defined in point (g) of article 4(3) of [regulation concerning the respect for private life and the protection of personal data in electronic communications]; ### deleted


### (10) ‘content data’ means any stored data in a digital format such as text , voice , videos , images , and sound other than subscriber , access or transactional data; ### (10) ‘content data’ means any data stored , transmitted or distributed in a digital format by the service provider on behalf of the client or subscriber other than subscriber or traffic data; where metadata of other electronic communication services or protocols are stored , transmitted or distributed by the service provider on behalf of the client or subscriber , they are to be considered content data for the respective service;


### (13) ‘enforcing state’ means the member state in which the addressee of the european production order or the european preservation order resides or is established and to which the european production order and the european production order certificate or the european preservation order and the european preservation order certificate are transmitted for enforcement; ### (13) ‘executing state’ means the member state in which the addressee of the european production order or the european preservation order resides or is established and to which the european production order and the european production order certificate or the european preservation order and the european preservation order certificate are transmitted for recognition and execution;


### (14) ‘enforcing authority’ means the competent authority in the enforcing state to which the european production order and the european production order certificate or the european preservation order and the european preservation order certificate are transmitted by the issuing authority for enforcement; ### (14) ‘executing authority’ means the competent authority in the executing state to which the european production order and the european production order certificate or the european preservation order and the european preservation order certificate are transmitted by the issuing authority for recognition and enforcement;


### 2. the european production orders and european production orders may only be issued for criminal proceedings , both during the pre-trial and trial phase. the orders may also be issued in proceedings relating to a criminal offence for which a legal person may be held liable or punished in the issuing state. ### 2. the european production orders and european preservation orders may only be issued in the framework and for the purposes of criminal proceedings. the orders may also be issued in proceedings relating to a criminal offence for which a legal person may be held liable or punished in the issuing state.


### 12. notes from the court’s report that in 2018 the office had launched an open public procurement procedure to establish framework contracts for the provision of temporary workers’ service in italy; notes that the office discontinued the procedure because only one tender was received and the office considered this offer unacceptable , as the financial offer exceeded the estimated maximum budget; observes that the court found that the tender specifications contained an important mistake amounting to eur 25 million; notes , therefore , that it is likely that other possible candidates refrained from submitting tenders to the office since the specifications did not allow for a lawful business case; notes furthermore , that the office did not change the tender specifications and did not allow to organise a new open procedure but instead negotiated the conditions and consequently signed the contract with the one tenderer that had responded to the initial call; notes with concern that in the absence of fair competition on the basis of correct tender specifications , the procurement procedure and all related contracts and future payments are considered irregular; calls on the office to apply the union public procurement rules in a rigorous manner; ### 12. notes from the court’s report that in 2018 the office had launched an open public procurement procedure to establish framework contracts for the provision of temporary workers’ service in italy; notes that the office discontinued the procedure because only one tender was received and the office considered this offer unacceptable , as the financial offer exceeded the estimated maximum budget; observes that the court found that the tender specifications contained an important mistake amounting to eur 25 million; notes , therefore , that it is likely that other possible candidates refrained from submitting tenders to the office since the specifications did not allow for a lawful business case; notes furthermore , that the office did not change the tender specifications and did not allow to organise a new open procedure but instead negotiated the conditions and consequently signed the contract with the one tenderer that had responded to the initial call; notes with concern that in the absence of fair competition on the basis of correct tender specifications , the procurement procedure and all related contracts and future payments are considered irregular; however , welcomes the adoption and implementation by the office of several corrective measures including the termination of the framework contract for temporary workers services in italy in december 2019 , the launch of an additional call for member states experts , and where possible , the use of alternative modalities for deployment of experts to cover the period until the entry into force of the new framework contract; calls on the office to apply the union public procurement rules in a rigorous manner;


### 19. regrets that there is still no policy regarding sensitive posts at the office , which is not in line with the office’s internal control standards whereby sensitive functions should be clearly defined , recorded and kept up to date; takes notes on the office’s reply that a sensitive posts policy is being finalised and is expected to be approved by q3 of 2019 and to be implemented by q4 of 2019; calls on the office to report to the discharge authority on developments on this matter; ### 19. welcomes the adoption of a policy on sensitive functions in september 2019 , which provides the guidelines and criteria for the management team to implement a risk assessment , identify and document the sensitive functions in easo together with the agreed mitigating controls; takes note that the sensitive function will be assessed and mitigating controls documented by the first quarter 2020; calls on the office to report to the discharge authority on developments on this matter;