Recital 40

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, a distinction should be made regarding the material scope of this Regulation. It should be possible to issue a European Production Order to obtain subscriber data or to obtain data requested for the sole purpose of identifying the user, as defined in this Regulation, for any criminal offence, whereas a European Production Order to obtain traffic data, except for data requested for the sole purpose of identifying the user as defined in this Regulation, or to obtain content data should be subject to stricter requirements to reflect the more sensitive nature of such data. This Regulation should provide for a threshold in relation to its scope, allowing for a proportionate approach, together with a number of other ex ante and ex post conditions and safeguards to ensure respect for proportionality and the rights of the persons affected. At the same time, such a threshold should not limit the effectiveness of this Regulation and its use by practitioners. Allowing the issuing of European Production Orders in criminal proceedings only for offences that carry at least a three-year maximum custodial sentence will limit the scope of this Regulation to more serious offences, without excessively affecting the possibilities of its use by practitioners. That limitation would exclude from the scope of this Regulation a significant number of offences which are considered less serious by Member States, as expressed in a lower maximum penalty. That limitation will also have the advantage of being easily applicable in practice.