Crime leaves digital traces that can serve as evidence in court proceedings. Often, it will be the only lead law enforcement authorities and prosecutors can collect. Therefore, effective mechanisms to obtain digital evidence are of the essence.
New rules
To make it easier and faster for law enforcement and judicial authorities to obtain the electronic evidence needed for investigation and potential prosecution of criminals and terrorists, the Commission proposed new rules in 2018, which were adopted by the Council of the European Union and the European Parliament on 12 July 2023.
The new rules:
- Guarantee strong protection of fundamental rights
Guarantee strong protection of fundamental rights, including safeguards for the right to protection of personal data. The persons whose data is being sought will benefit from various safeguards and be entitled to legal remedies. The authorities of the Member State where the service provider is established or represented will be involved in certain cases through a notification mechanism and can stop the production of the data based on a list of four grounds. A specific procedure involving a judge or a court is provided in case a service provider is subject to conflicts of law. - Oblige service providers to designate an establishment or a legal representative in the EU
Ensure that all providers offering services in the EU are subject to the same obligations, even if their headquarters are in a third country, they are required to designate an establishment or appoint a legal representative in the European Union for the receipt of, compliance with and enforcement of decisions and orders. - Provide legal certainty for businesses and service providers
Today law enforcement authorities often depend on the good will of service providers to hand them the evidence they need. In the future, applying the same rules for access to all service providers will improve legal certainty and clarity. Establish a decentralised IT system
Create a decentralised IT system providing a secure and reliable environment for all communications between authorities and service providers, ensuring authentication of all participants.
The new rules also introduce a European Production Order and Preservation Order:
- European Production Order
The European Production Order will allow a judicial authority in one EU Member State to obtain electronic evidence (such as emails, text or messages in apps, as well as information to identify a perpetrator as a first step) directly from a service provider, or its legal representative, in another EU Member State, which will be obliged to respond within 10 days, and within 8 hours in cases of emergency (as opposed to up to 120 days for the European Investigation Order or an average of 10 months for a mutual legal assistance procedure). - European Preservation Order
The European Preservation Order will allow a judicial authority in one EU Member State to request that a service provider, or its legal representative, in another EU Member State preserves specific data in view of a subsequent request to produce this data via mutual legal assistance, a European Investigation Order or a European Production Order.
Policy timeline
The new rules respond to strong calls for action by Member States and industry and are based on a thorough impact assessment analysing the problem, the options and the impact of the various options, supported by extensive stakeholder consultations, including a public consultation. Negotiations between the co-legislators concluded in late 2022. The new rules apply as of 18 February 2026 for the Directive and 18 August 2026 for the Regulation.
The key milestones of the process to date are:
- 18 August 2026The Regulation becomes applicable.
- 18 February 2026Deadline for Member States to transpose the Directive.
- January 2026Official publication of the adopted Implementing Regulation
Official publication of the adopted Implementing Regulation on setting out the technical specifications and other requirements for the decentralised IT system.
- July 2023Official publication of the adopted legislation
Official publication of the adopted legislation (Regulation and Directive)
- January 2023Endorsement of the political agreement
Endorsement of the political agreement by the EU Member States’ ambassadors and the European Parliament’s Committee on Civil Liberties, Justice and Home Affairs.
- November 2022Political Agreement between the Council of the European Union and the European Parliament on the Regulation and the Directive
- April 2018Regulation and Directive facilitating cross-border access to electronic evidence for criminal investigations
The Commission adopts proposals for Regulation and Directive facilitating cross-border access to electronic evidence for criminal investigations.
In addition to proposing legislative measures, the Commission supports practical measures that streamline cooperation with service providers and with authorities in countries outside the EU (through projects like SIRIUS) and builds the capacity of authorities to cooperate internationally on criminal matters, for instance by funding projects supporting the exchange of best practice like CyberSPEX.
Implementation of the e-evidence rules
- Government websites in Member States informing about the e-evidence package
- Information on Member States ready to issue and/or receive EPOCs and EPOC-PRs
- Commission guidance on the calculation of deadlines in Regulation 2023/1543
- Commission guidance on contingency arrangements
- User manual for the reference implementation software competent authorities module connected to the decentralised IT system (Version 1.1)
- Q & A legal contingency
- User guide European court database notification form for service providers (Version 1.2)
- User manual for the reference implementation software service providers web-based interface connected to the decentralised IT system (Version 1.0)
Documents
- Summary of the Report of the public consultation on improving cross-border access to electronic evidence in criminal matters
- Regulation on European Production Orders and European Preservation Orders for electronic evidence in criminal proceedings and for the execution of custodial sentences following criminal proceedings
- Directive laying down harmonised rules on the designation of designated establishments and the appointment of legal representatives for the purpose of gathering electronic evidence in criminal proceedings