Recital 36

When a European Production Order or a European Preservation Order is issued, there should always be a judicial authority involved either in the process of issuing or in the process of validating the order. In view of the more sensitive nature of traffic data, except for data requested for the sole purpose of identifying the user as defined in this Regulation, and of content data, the issuing or validation of a European Production Order to obtain those data categories requires review by a judge. As subscriber data and data requested for the sole purpose of identifying the user as defined in this Regulation are less sensitive, a European Production Order to obtain such data can in addition be issued or validated by a competent public prosecutor. In accordance with the right to a fair trial, as protected by the Charter and the European Convention for the Protection of Human Rights and Fundamental Freedoms, public prosecutors are to exercise their responsibilities objectively, taking their decision in relation to the issuing or validation of a European Production Order or a European Preservation Order solely on the basis of the factual elements in the case file and taking into account all incriminatory and exculpatory evidence.