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Migration and Home Affairs
  • 21 January 2025

E-evidence

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 28 July 2023. 

The new rules will apply as of summer 2026 and will:

  • Guarantee strong protection of fundamental rights
    The rules include safeguards for the right to protection of personal data. The service providers and persons whose data is being sought will benefit from various safeguards and be entitled to legal remedies.
  • Oblige service providers to designate an establishment or a legal representative in EU
    To ensure that all providers that offer services in the EU are subject to the same obligations, even if their headquarters are in a third country, they are required to designate a legal representative in the 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.

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 country 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 country. In some instances, the judicial authority is required to involve an authority in the Member State where the service provider or its legal representative is located, through a notification.
    The latter will be obliged to respond within 10 days, and within 8 hours in cases of emergency (compared to up to 120 days for the old 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 country to request that a service provider, or its legal representative, in another EU country 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.

For more information on the new rules, please see the recent presentation included below in the “Documents” section.

Policy timeline

The proposals were the outcome of a two-year process resulting from strong calls for action by Member States and industry. It included a thorough impact assessment (see the executive summary) analysing the problem, the options and the impacts of the various options, supported by extensive stakeholder consultations. Negotiations between the co-legislators took an additional four years to complete and concluded in late 2022. 

The key milestones of the process to date are: 

  1. 18 August 2026
    The Regulation becomes applicable.

    However, obligation for competent authorities and service providers to use the decentralised IT system for written communication shall apply from one year after the adoption of the implementing acts.

  2. 18 February 2026
    Deadline for Member States to transpose the Directive.
  3. 18 August 2025
    Deadline for adoption of Implementing acts necessary for the establishment and use of the decentralised IT system for the purposes of the Regulation.
  4. July 2023
    Official publication of the adopted legislation (Regulation and Directive)
  5. January 2023
    Endorsement 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.

  6. November 2022
    Political Agreement between the Council of the European Union and the European Parliament on the Regulation and the Directive
  8. April 2018
    Regulation 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.  

Documents

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