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Europe Data Protection Digest | A view from Brussels: The balancing act between law enforcement and fundamental rights Related reading: A view from Brussels: Meta prepares for DPC order to stop EU-US data transfers




From time to time, the complex balancing act between law enforcement and fundamental rights resurfaces in Brussels.

Observers of Brussels' debate on law enforcement access will have picked up on the white smoke coming out of the European Council building 25 Jan. That day, the Council Presidency and the European Parliament reached an agreement on the regulation and directive on cross-border access to e-evidence. The so-called "e-evidence package" was proposed by the European Commission in April 2018. At the time, the European Commission defended this proposal with one main objective: that this package help law enforcement authorities obtain electronic evidence directly from service providers, increase transparency and oversight, and erase some friction due to conflicting individual member state laws in this area. 

It was also seen as an important building block to support the creation of international agreements that would facilitate cross-border law enforcement access to data between the EU and some of its partners. Reversely, the text was also the subject of harsh critics from civil society, primarily concerned by the lack of safeguards and potential abuse by some member states against specific groups such as journalists and human rights associations. As a result, trilogue negotiations between the EU institutions had reportedly been slow and complex. Movement last spring suggested that a deal would be within reach. A political agreement was announced 29 Nov. and endorsed in late January by Parliament and the European Council. The text, as approved, is now going through a final legal and linguistic scrub and will then be published in the Official Journal of the European Union shortly after.

The other file in which this will also come up, granted this won't be the only difficult area, is the EU AI Act proposal. It will soon enter the trilogue negotiations phase between the European Parliament, Council of the EU and European Commission as the former is set to formally validate its report on 11 May. The Council of the EU approved its own general approach back in December. The three bodies will have a significant divergence of views to reconcile in areas wide-ranging from the definition of AI systems and classification of AI systems, requirements and responsibilities of various stakeholders involved in the AI life cycle, to the interplay between the AI Act and other legislation.

Co-legislators will also have to work within a compressed timeframe. Indeed, the European elections are looming in May/June 2024, putting an informal soft stop to the negotiation period around March, as parliamentarians usually become consumed with electoral campaigns at that point. Should the co-legislators fail to reach an agreement on the AI Act by March, the negotiations would be put on hold until parliamentary activity (and national politics) can resume.

That said, the political impetus in Brussels and sense of urgency to complete this process point to the AI Act being finalized by then, if not before the end of the 2023 calendar year. Note that there will be an implementation period of 24 to 36 months, depending on what legislators agree.

All this will also happen against the backdrop of regulators across European and beyond investing in privacy issues in the AI world. Our November European Congress promises to be particularly saucy!

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