Property & Real Estate Barristers
Iain G. Mitchell QC appeared before the LIBE Committee of the European Parliament in Brussels
14th January 2019
Iain G. Mitchell, QC, Chair of the CCBE Working Party on Surveillance, appeared before the LIBE Committee of the European Parliament in Brussels, where he gave evidence on behalf of the CCBE to a special session of the Committee called to consider the European Commission’s proposed draft of a new EU regulation for the preservation and recovery of electronic evidence.
The draft provides for a judicial or investigating authority in one member state being able to serve an order on a service provider in another member state for the preservation or recovery of electronic evidence.
Commenting on the proposal, Mr. Mitchell told MEPs that the CCBE opposes the proposed regulation as there is no proper legal basis for it under the EU Treaties. In any event in its present form, he said, it infringes upon fundamental rights: in respect of content data, there is a requirement for approval of an Order by a judicial authority in the state issuing the request but there is no scrutiny by any judicial authority in the state where the order is served; in respect of communications data, there is simply no judicial scrutiny at all. This, he explained, was not consistent with the jurisprudence of the European Court of Human Rights on the Article 8 right to privacy.
He said that he appreciated that the previous speaker, a Belgian Prosecutor, who supported the Commission proposal, had claimed that we live in exceptional times and that demands exceptional measures, but he added:
“The claim that exceptional times demanded exceptional measures has been used throughout history, from the time of the appointment of dictators by the Roman Senate, to justify infringements of fundamental rights. The truth is that exceptional times demand not exceptional measures, but measures which are considered, proportionate and lawful.”
Speaking after the meeting, he commented:
“I was pleased to have had the opportunity to place before the MEPs the very real concerns of lawyers throughout Europe about the lawfulness of the proposed measures. It is a concern shared by civil society organisations and data protection authorities throughout the EU. It was encouraging that the MEPs really seemed to appreciate those concerns, and I’m hopeful that the European parliament will address them.”
A television news report is at https://www.euractiv.com/section/cybersecurity/video/the-security-of-european-citizens-what-role-for-e-evidence/