Dáil Éireann Debate, Tuesday - 19 June 2018
231. Deputy Jim O'Callaghan asked the Minister for Justice and Equality if there are plans to opt into the EU e-evidence legislation proposed in Directive COM/2018/226 and regulation COM/2018/225; and if he will make a statement on the matter. [26240/18]
View answerThe recently published proposals for a “Regulation of the European Parliament and of the Council on European Production and Preservation Orders for electronic evidence in criminal matters (COM (2018) 225)” and an associated “Directive of the European Parliament and of the Council, laying down harmonised rules on the appointment of legal representatives for the purposes of gathering evidence in criminal proceedings ((Com 2018) 226)” represents the culmination of almost two years work by the EU Commission.
The Regulation and Directive seek to provide a firm legal basis by which law enforcement agencies within the EU Member States may seek the preservation of, and access to, data held by certain service providers in the communications sector. It is a response to calls by Member States, law enforcement agencies and industry for the regulation of this sector. The publication of the Regulation and the Directive follows an extensive period of consultation by the Commission with Member States, industry and civil society.
The proposed Regulation introduces binding European Production and Preservation Orders. Both orders are required to be issued by a judicial authority (a prosecutor or a judge). An order can be issued to seek preservation or production of data that is stored by a service provider located in another jurisdiction. Such orders may only be issued if a similar measure is available for the same criminal offence in a comparable domestic situation in an issuing State.
The proposed Directive makes it mandatory for relevant service providers to designate a legal representative to receive and comply with orders issued under the proposed Regulation.
The legal basis of the proposed Regulation is Article 82 of the Treaty of the Functioning of the European Union. Article 82(1) provides that measures may be adopted in accordance with the ordinary legislative procedure to lay down rules and procedures for ensuring recognition throughout the Union of all forms of judgments and judicial decisions.
The legal basis of the proposed Directive is Articles 53 and 62 of the Treaty on the Functioning of the European Union. As such, it is binding on all States, including Ireland, and there is no opt out facility afforded to Ireland where the Directive is concerned.
This proposed Regulation falls under "Protocol No 21 on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union". The Regulation requires the approval of the Oireachtas under Article 29.4.7 of the Constitution for Ireland to opt into it.
It is my intention to seek the approval of Government to take the necessary measures to seek Oireachtas approval for Ireland to opt into the Regulation at a suitable juncture.
