Questions and Answers: Mandate for the Second Additional Protocol to the Budapest Convention
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What is the Council of Europe Convention on Cybercrime?
The Council of Europe Convention on Cybercrime (CETS No. 185) of 2001 is a multilateral treaty that provides a legal framework for the fight against crimes committed over the Internet or other computer networks, dealing in particular with computer-related fraud, child pornography, violations of network security and infringements of copyright. The European Union recognises and supports the Convention as the main global instrument for the fight against cybercrime. The Convention delivers in three areas by:
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-harmonising aspects of criminal law in the area of cybercrime;
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-providing for criminal procedural tools needed for the investigation and prosecution of attacks against information systems - as well as other offences committed by means of a computer system or electronic evidence in relation to those offences;
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-fostering a fast and effective regime of international cooperation.
The Convention is open to Member States of the Council of Europe and non-members (upon invitation). At present 62 countries are parties to the Convention - including 26 EU Member States (all except Ireland and Sweden, which have signed but not yet ratified the Convention and are committed to pursuing accession). Parties to the Convention which are not Council of Europe members include the United States, Canada, Japan, Senegal and Australia.
Why is a Second Additional Protocol to the Convention needed?
Since 2001, when the Budapest Convention was signed, the evolution of information and communication technologies brought new opportunities as well as challenges, in particular when it comes to access to electronic evidence in criminal proceedings. The Parties to the Convention have been looking for some time now into existing obstacles related to access to electronic evidence by judicial and police authorities. The Second Additional Protocol would address those challenges by ensuring greater international cooperation. The negotiations on the Protocol started in June 2017 and are due to be concluded by December 2019.
The negotiations of the Second Additional Protocol focus on 4 key elements: measures to improve international cooperation between law enforcement and judicial authorities - including on legal assistance between authorities (“mutual legal assistance”); cooperation between authorities and service providers in other countries; conditions and safeguards for access to information by authorities in other countries; and other safeguards, including data protection requirements.
Why is the Commission proposing EU participation in these negotiations?
Once negotiations have been concluded, the Second Additional Protocol to the Convention may eventually include measures covering areas where the European Union has already adopted legislation - including on judicial cooperation and the protection of fundamental rights. In certain areas - including cross-border access to electronic evidence for criminal investigations - the EU is currently in the process of negotiating future legislation. The Second Additional Protocol is of direct relevance to existing and future development of common EU rules. It is important that the EU participates in the negotiations to help shape this Second Additional Protocol. By participating in the negotiations on behalf of the European Union and providing an EU-coordinated position, the Commission will be best placed to ensure that the Second Additional Protocol is compatible with current and future EU legislation.
How will fundamental rights be protected under the Second Additional Protocol?
The protection of fundamental rights and freedoms will be central to the negotiations. The Commission will work on behalf of the European Union to ensure that individuals are protected in line with the EU Charter of Fundamental Rights, general principles of EU law and relevant case law of the European Court of Justice. This will ensure that all EU citizens will receive protection under the Second Additional Protocol that is fully in line with EU legislation. In particular, the EU will consider the protection of privacy and personal data (as specified in the General Data Protection Regulation, the e-Privacy Directive and the Data Protection Directive for Police and Criminal Justice Authorities), procedural rights like the right to an effective remedy and to a fair trial, presumption of innocence and right of defence, the principles of legality and proportionality of criminal offences and penalties and any obligations incumbent on law enforcement or judicial authorities in this respect.
Why is the Commission proposing this recommendation now?
The negotiations on the Second Additional Protocol began in 2017 and should be finalised by December 2019. In order to ensure that the Second Additional Protocol, once concluded, is compatible with existing EU legislation, it is important that the European Union participates in the negotiations as soon as possible, with a view to ensuring an outcome that is compatible with existing EU law in this area. The negotiations on the Second Additional Protocol may also relate to future EU legislation - in particular on cross-border access to electronic evidence. The Commission decided to propose EU rules on electronic evidence, before engaging in negotiations with third parties. The Council established its general approach on 7 December 2018 and the Parliament is working on formulating its position.
What is the role of the European Parliament?
For the negotiation and conclusion of international agreements by the European Union, the Treaty provides that the European Parliament should be informed throughout the procedure. In addition, the European Parliament is involved by the Council before an international agreement can be concluded. However, the European Parliament does not have a formal role in the opening of negotiations for an international agreement by the European Union. Where the negotiations for the Second Additional Protocol may affect future EU legislation - in particular the Commission proposals on cross-border access to electronic evidence - the Commission will take account of the positions of the Council and the European Parliament as the proposals evolve in the negotiations.
Why is the Commission requesting two negotiating mandates at the same time?
There is an urgent operational need for EU Member State authorities to obtain access to electronic evidence for criminal investigations. With today's proposal the Commission is following up on the call of EU leaders in the European Council conclusions of October 2018.
In addition, the Commission believes that to avoid fragmentation and different levels of protection in different EU Member States there should be a common EU approach rather than bilateral agreements between the U.S., third countries and some EU Member States.
The Commission is requesting today two negotiating mandates: to launch discussions with the United States; and to participate in negotiations on a Second Additional Protocol to the Council of Europe “‘Budapest'” Convention on Cybercrime. Although there may be a number of differences between the types of negotiations and the scope of the international agreements, the two are closely related to each other. While the scope of the agreement with the U.S. is more limited and focuses on access to electronic evidence, the Second Additional Protocol provides for a more comprehensive framework of cooperation amongst more than 60 countries. Both cover areas which are relevant to existing and future developments of common EU rules, in particular as regards the EU's approach to cross-border access to electronic evidence. The Commission considers that the negotiations will often address related issues, and that commitments taken in one negotiation may have a direct impact on the other negotiation. Therefore, the Commission adopted the two recommendations at the same time.
What is the timeline for the negotiations?
First, the Commission's recommendations will have to be adopted by the Council, which will also have to approve the negotiating directives set out in the mandates. Once the mandates are adopted, the Commission will be able to start negotiations.
For More Information
Press Release - Security Union: Commission proposes international cooperation on electronic evidence
Links to all the documents available here.
MEMO/19/865
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