Brussels, 27 June 2023
Today, the Council adopted a regulation and a directive on cross-border access to electronic evidence (e-evidence). E-evidence refers to digital data, such as emails, text messages and traffic data, that is used to investigate and prosecute criminal offences. The new rules will make it easier for the police and judicial authorities to obtain such evidence.
The laws the Council adopted today will improve the police and judicial authorities’ access to electronic evidence, especially when it is located in other countries. This is a crucial step forward to fight crime in the EU.
Gunnar Strömmer, Swedish Minister for Justice
European production and preservation orders
According to the new rules, judicial authorities will be able to directly request electronic evidence from service providers – such as telecom or social media companies – based in another member state. The service providers will be obliged to respond within 10 days, or 8 hours in emergency cases.
Through a European preservation order, judicial authorities can prevent foreign service providers from deleting data. This would enable the authorities to request this information at a later stage.
Designated establishment and legal representative
Service providers that offer their services in the EU must appoint a legal representative or designate an establishment to which judicial authorities can send their e-evidence orders. Their role will be the receipt of, compliance with and enforcement of European production and preservation orders. The legal representative will have to be physically present in the EU.
Both the designated establishment or legal representative and the service provider itself can be held liable if they do not comply with the orders. Member states must make sure that there are penalties in place in case of non-compliance.
Background
Until now, accessing e-evidence held by service providers based in another member state has been a lengthy and complicated process. Online service providers store users’ data on servers which may be located in several countries, both in and outside the EU, which has made it much more difficult for judicial authorities to collect e-evidence.
A cross-border request to obtain e-evidence is made in over 50% of all criminal investigations.
Next steps
The regulation on European production and preservation orders is binding in its entirety in all member states and will become applicable 36 months after its entry into force. The directive on the designation of establishments and appointment of legal representatives must be transposed within 30 months of its entry into force (which will ensure that the legal representatives are in place once the regulation enters into force).
- Better access to e-evidence to fight crime (background information)
- Electronic evidence: Council confirms agreement with the European Parliament on new rules to improve cross-border access to e-evidence (press release, 25 January 2023)
- Regulation on European Production and Preservation Orders (14 June 2023)
- Directive on the appointment of legal representatives (14 June 2023)
Source – EU Council
E-evidence: Commission welcomes final agreement on cross-border access to electronic evidence
The Commission welcomes the final adoption today by EU Member States of landmark legislation to facilitate their authorities’ cross-border access to electronic evidence in the EU. The European Commission proposed this legislative package in 2018, introducing a new form of judicial cooperation based on mutual recognition through the European Production Order that enables judicial authorities to directly request electronic evidence from a service provider based in another Member State, regardless of where the data is located. It also creates a European Preservation Order, to prevent any evidence from being deleted in anticipation of a future request for production. In order to ensure compliance with cross-border judicial orders, the new rules will require service providers to designate a legal representative or one of their existing establishments in the EU to receive, comply with, and enforce requests to gather electronic evidence.
Commissioner for Justice, Didier Reynders, said:
“It is high time to equip our prosecutors and law enforcement with modern tools for the digital age. The internet knows no borders and the same is true for criminals. Even for many national investigations the new rules will help given that e-evidence is often held by a service provider based in another country. With this legislation, investigators across our Union will finally have efficient and reliable means to obtain e-evidence swiftly, wherever it is found.”
Commissioner for Home Affairs, Ylva Johansson, added:
“Digital should not mean ‘out of reach’ from justice. If competent authorities can obtain criminal evidence in the analogue world, we need to ensure that they can also obtain it in the digital one with the same speed and effectiveness. To fail to ensure such access is to fail the victims. This legislation will significantly contribute to avoiding that.”
Once published in the Official Journal, the new rules, a Regulation and a Directive, will enter into force 20 days after their publication. The Regulation will enter into application three years after that. Member States are required to transpose the Directive into their national laws in the next two and a half years.
More information can be found here.