Why is the EU introducing the E-Evidence package? The answer lies in the growing role of electronic evidence in criminal investigations. As more data is stored electronically, often in the cloud, this data becomes harder to pin down geographically. The classic territoriality of criminal law, with its clear national borders and local procedures, clashes with the highly mobile, cross-border nature of electronic data. This tension has made it increasingly difficult for law enforcement to access crucial evidence in time, especially in cross-border cases. The E-Evidence package is the EU’s attempt to find a solution to this problem, by offering a streamlined system for accessing electronic evidence, but it also raises concerns about privacy, fundamental rights, and the role of EU service providers.
Before the E-Evidence Package: Struggling with Cross-Border Data Requests
In a world where evidence is increasingly digital, accessing this data has become a logistical nightmare. Traditionally, when a law enforcement authority needed to obtain data from another country, it relied on mutual legal assistance treaties (MLATs) or the European Investigation Order (EIO). But these procedures were often slow, cumbersome, and unsuitable for the fast-moving nature of electronic data, which could be altered or deleted before the authorities could get their hands on it. This system, designed for a world where evidence was tied to a physical location, required multiple layers of approval from different national authorities, creating significant delays that hindered investigations and put evidence at risk.
What’s New: Direct Access to Electronic Data Across Borders
The E-Evidence package is made up of two legislative proposals:
- a 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; and
- a 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.
The E-Evidence package introduces a game-changing solution: direct orders to service providers, cutting out the need for intermediary approval from the country where the provider is based. All service providers in the EU will thus be subject to the same obligations regarding access to electronic evidence.
The E-Evidence package aims to give law enforcement authorities the tools they need to access data wherever it is stored, without getting bogged down by borders. This is especially important for investigations involving cybercrime, terrorism, and other serious offences where time is of the essence.
The Regulation will now allow authorities to send a European Production Order and/or a European Preservation Order directly to service providers:
- The European Production Order will allow authorities to directly request access to e-evidence from a service provider established or represented in another member state.
- Service providers are legally obliged to respond within 10 days, or within 6 hours in urgent cases. This is a massive improvement over the months it could take under the old system.
- The European Preservation Order will prevent e-evidence from being deleted by a service provider while the production order is still being processed.
Under the Directive, member states will require service providers to designate the establishment (if established in the EU) or to appoint the legal representative (if not established in the EU) that will be responsible for receiving, complying with and executing these orders.
Nothing but good things? Not necessarily
While speed is crucial in criminal investigations, critics worry that this efficiency might come at the cost of important safeguards. The E-Evidence package carries risks in particular for human rights, data protection and professional secrecy.
Indeed, the rule of law is not homogenous across the EU and the mechanism could be abused by member states to sideline the EU’s fundamental rights and democratic values. Also, the Regulation leaves the specific form of effective legal remedies by individuals against orders to the discretion of member states.
As a result, the question arises as to whether such direct procedures and the available effective legal remedies will offer sufficient guarantees.
When Will the E-Evidence Package Come Into Effect?
The E-Evidence package will be rolled out in stages. The E-Evidence Regulation will take effect on 18 August 2026, while the E-Evidence Directive requires member states to incorporate the rules into their national laws by 18 February 2026. This timeline gives member states and service providers the chance to adjust their legal frameworks and incorporate the processes to effectively use or respond to the new system.
Conclusion
The E-Evidence package is a bold attempt to modernise the way electronic evidence is accessed in criminal investigations. It solves the speed problem by allowing law enforcement to go straight to service providers for data, but at what cost? As we approach the 2026 implementation date, it is important to consider the balance between efficiency and privacy, and how to ensure that fundamental rights are protected while giving law enforcement authorities the tools they need to fight crime in a digital age.
