COMMISSION STAFF WORKING DOCUMENT EXECUTIVE SUMMARY OF THE IMPACT ASSESSMENT Accompanying the document Proposal for a Regulation of the European Parliament and of the Council on European Production and Preservation Orders for electronic evidence in criminal matters and Proposal for a Directive of the European Parliament and of the Council laying down harmonised rules on the appointment of legal representatives for the purpose of gathering evidence in criminal proceedings
Date: 2018-04-17
Institutions: Directorate-General for Justice and Consumers, European Commission
Subjects: Internet, computer crime, criminal proceedings, cross-border cooperation, data protection, digital evidence, evidence, exchange of information, personal data, provision of services

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   EUROPEAN COMMISSION  Brussels, 17.4.2018  SWD(2018) 119 final  COMMISSION STAFF WORKING DOCUMENT  EXECUTIVE SUMMARY OF THE IMPACT ASSESSMENT  Accompanying the document Proposal for a Regulation of the European Parliament and of the Council on European Production and Preservation Orders for electronic evidence in criminal matters  and Proposal for a Directive of the European Parliament and of the Council laying down harmonised rules on the appointment of legal representatives for the purpose of gathering evidence in criminal proceedings {COM(2018) 225 final}  - {COM(2018) 226 final} - {SWD(2018) 118 final}  
 
 
Executive Summary Sheet 

Impact assessment for a proposal  
on improving cross-border access to electronic evidence in criminal matters 

A. Need for action 

What is the problem and why is it a problem at EU level?  

Difficulties in cross-border access to electronic evidence currently hinder the effective investigation and 
prosecution of crime in the EU. There is a lack of efficiency in judicial cooperation between public authorities, 
direct  cooperation  between  public  authorities  and  service  providers,  and  public  authorities’  direct  access  to 
electronic  evidence.  As  a  result,  investigations  come  to  a  halt,  crimes  go  unpunished,  victims  are  less  well 
protected, and EU citizens feel less safe. 

The impact assessment identifies three problems: 

1.  It  takes  too  long  to  access  e-evidence  across  borders  under  existing  judicial  cooperation 

procedures, rendering investigations and prosecutions less effective. 

2.  Inefficiencies in public-private cooperation between service providers and public authorities hamper 

effective investigations and prosecutions. 

3.  Shortcomings in defining jurisdiction can hinder effective cross-border investigations and prosecutions.  

What needs to be achieved?  

The  general  objective  is  to  ensure  effective  investigation  and  prosecution  of  crimes  in  the  EU  by  improving 
cross-border  access  to  electronic  evidence  through  enhanced  judicial  cooperation  in  criminal  matters  and  an 
approximation of rules and procedures. 

There are three specific objectives:  

1.  Reduce delays in cross-border access to electronic evidence; 
2.  Ensure cross-border access to electronic evidence where it is currently lacking; 
3.  Improve legal certainty, protection of fundamental rights, transparency and accountability. 

What is the value added of EU-level action (subsidiarity)?  

Since  this  initiative  involves  cross-border  issues,  the  problems  concerned  cannot  be  solved  by  individual  EU 
countries.  Moreover,  given  the  diversity  of  legal  approaches,  the  number  of  policy  areas  concerned  (security, 
criminal law, fundamental rights including data protection, economic issues) and the wide range of stakeholders, 
the EU is the most appropriate level at which to address the problems identified.  
EU-level  action  also  facilitates  cooperation  with  non-EU  countries,  especially  the  US;  this  is  important,  as  the 
need to access e-evidence internationally frequently goes beyond EU borders. 

B. Solutions 

What are the various options for achieving the objectives? Is there a preferred option? If not, why 
not?  
Option A: non-legislative action (i.e. practical measures to improve judicial cooperation among public     
                authorities and step up direct cooperation between public authorities and service providers) 
Option B: option A + international agreements 
Option C: option B + direct cooperation legislation (European Production Order + access to databases) 
Option D: option C + direct access legislation  
Option D is the preferred option, both qualitatively and in terms of costs and benefits. 

What are the views of the various stakeholders concerned? Who supports which option?  

Extensive  stakeholder  consultations  were  held  over  more  than  18  months.  Public  authorities  in  EU  countries 
highlighted the following key issues: the length of time it takes to process a request, lack of reliable cooperation 
with service providers, lack of transparency and, for investigative measures, legal uncertainty about jurisdiction.  
Service providers and some civil society organisations said that legal certainty was essential to enable direct 
cooperation with public authorities and that conflicts of law must be avoided. 
Some  civil  society  organisations  opposed  EU-level  legislation  on  direct  cooperation;  instead,  they  had  a 
preference for improving mutual legal assistance procedures. 

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C. Impacts of the preferred option 

What are the benefits of the preferred option (if any apart from the main ones)?  

The  initiative  is  expected  to  make  investigations  and  prosecutions  more  effective  and  efficient,  improve 
transparency and accountability, guarantee respect for fundamental rights, and foster trust in the digital single 
market  by  improving  security  and  reducing  the  perception  of  impunity  for  crimes  committed  on  or  through 
networked devices. 

What are the costs of the preferred option (if any apart from the main ones)?  

The costs are  administrative, arising from EU countries’  transposition and enforcement of the preferred 
option and service providers' compliance: 

  One-off costs are estimated at EUR 3.3m for EU countries and EUR 1.7m for service providers. 
  The  preferred  option  will  not  introduce  any  recurrent  costs.  Rather,  it  will  generate  recurrent  savings 
estimated  at  over  EUR  7.1m  annually  for  Member  States  and  over  EUR  4.3m  annually  for  service 
providers. 

What are the impacts on SMEs and competitiveness?  

Legal certainty and standardisation of procedures, which would alleviate administrative burden and favour 
competitiveness, should have a positive impact on SMEs.  

Will there be any significant impacts on national budgets and administrations?  

The preferred option is expected to have initial implementation costs, which would be offset in the long term by 
savings on recurrent costs. National authorities would have to adapt to new procedures and undergo training. 
However,  in  the  long  term  authorities  should  benefit  from  streamlining  and  centralisation,  additional 
training and the clear legal framework governing requests for access to data, which should generate efficiency 
gains.  Similarly,  as the  preferred  option  would  take strain  off  judicial  cooperation  channels, there  should be  a 
drop in the number of requests countries are required to process. 

Will there be any other significant impacts?  

Service providers would need to adapt to a new legislative framework by introducing new procedures, training 
staff,  and,  possibly,  appointing  a  legal  representative.  The  implementation  of  practical  measures,  while  not 
compulsory, would generate certain costs. Service providers might face more requests, pushing up compliance 
costs. Conversely, a harmonised framework could reduce the burden on those providers currently responding to 
requests for non-content data which have to assess them under the different laws of all Member States. 
More  effective  investigations  involving  cross-border  access  to  electronic  evidence  would  have  positive  social 
impacts, including a possible reduction in crime through increased deterrence. 
The preferred option contains sufficient safeguards to ensure that the measures it includes are fully compatible 
with fundamental rights. 
No significant environmental impact was detected. 

Proportionality?  

The  preferred  option  would  introduce  rules  and  procedures  to  improve  cross-border  access  to  electronic 
evidence  for  national  judicial  authorities,  with  explicit  safeguards  based  on  necessity  and  proportionality.  

It would not impose disproportionate obligations on the private sector (including SMEs) or individuals. Rather, it 
would  introduce  a  set  of  measures  expected  to  produce  substantial  material  and  intangible  benefits. 

The  preferred  option  does  not  go  beyond  what  is  necessary  to  solve  the  original  problem  and  meet  the 
defined objectives of EU action. 

D. Follow-up 

When will the policy be reviewed?  

The  Commission  should  review  the  initiative's  implementation  to  assess  whether  policy  objectives  have  been 
met.  This  evaluation  should  take  place  5  years  after  the  deadline  for  implementing  the  legislative  act,  thus 
allowing enough time to elapse for a meaningful assessment of law and practice across all participating Member 
States. 

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