e-Evidence Regulation Article 17: Review procedure in the event of conflicting obligations

1. Where an addressee considers that compliance with a European Production Order would conflict with an obligation under the applicable law of a third country, it shall inform the issuing authority and the enforcing authority of its reasons for not executing the European Production Order, in accordance with the procedure set out in Article 10(8) and (9) using the form set out in Annex III (‘the reasoned objection’).

2. The reasoned objection shall include all relevant details on the law of the third country, its applicability to the case at hand and the nature of the conflicting obligation. The reasoned objection shall not be based on:

(a) the fact that similar provisions concerning the conditions, formalities and procedures for issuing an order for production do not exist in the applicable law of the third country; or

(b) the sole fact that the data are stored in a third country.

The reasoned objection shall be filed no later than 10 days after the date on which the addressee received the EPOC.

3. The issuing authority shall review the European Production Order on the basis of the reasoned objection and any input provided by the enforcing State. Where the issuing authority intends to uphold the European Production Order, it shall request a review by the competent court of the issuing State. The execution of the European Production Order shall be suspended pending completion of the review procedure.

4. The competent court shall first assess whether a conflict of obligations exists, based on an examination of whether:

(a) the law of the third country is applicable based on the specific circumstances of the case in question; and

(b) the law of the third country, if applicable as referred to in point (a), prohibits disclosure of the data concerned when applied to the specific circumstances of the case in question.

5. Where the competent court finds that no relevant conflict of obligations within the meaning of paragraphs 1 and 4 exists, it shall uphold the European Production Order.

6. Where the competent court establishes, based on the examination pursuant to paragraph 4, point (b), that the law of the third country prohibits disclosure of the data concerned, the competent court shall determine whether to uphold or lift the European Production Order. That assessment shall in particular be based on the following factors, while giving particular weight to the factors referred to in points (a) and (b):

(a) the interest protected by the relevant law of the third country, including fundamental rights as well as other fundamental interests preventing disclosure of the data, in particular national security interests of the third country;

(b) the degree of connection between the criminal case for which the European Production Order was issued and either of the two jurisdictions, as indicated inter alia by: (i) the location, nationality and place of residence of the person whose data are being requested or of the victim or victims of the criminal offence in question; (ii) the place where the criminal offence in question was committed;

(i) the location, nationality and place of residence of the person whose data are being requested or of the victim or victims of the criminal offence in question;

(ii) the place where the criminal offence in question was committed;

(c) the degree of connection between the service provider and the third country in question; in this context, the data storage location alone shall not suffice for the purpose of establishing a substantial degree of connection;

(d) the interests of the investigating State in obtaining the evidence concerned, based on the seriousness of the offence and the importance of obtaining evidence in an expeditious manner;

(e) the possible consequences for the addressee or for the service provider of complying with the European Production Order, including the potential penalties.

7. The competent court may request information from the competent authority of the third country, taking into account Directive (EU) 2016/680, in particular Chapter V thereof, and to the extent that such request does not obstruct the relevant criminal proceedings. Information shall, in particular, be requested from the competent authority of the third country by the issuing State where the conflict of obligations concerns fundamental rights or other fundamental interests of the third country related to national security and defence.

8. If the competent court decides to lift the European Production Order, it shall inform the issuing authority and the addressee. If the competent court determines that the European Production Order is to be upheld, it shall inform the issuing authority and the addressee, and that addressee shall proceed with the execution of the European Production Order.

9. For the purposes of the procedures under this Article, the time limits shall be calculated in accordance with the national law of the issuing authority.

10. The issuing authority shall inform the enforcing authority about the outcome of the review procedure.