E-Evidence

Since August 2026, the law enforcement authorities of EU Member States have been able to issue orders requiring the disclosure of data to digital corporations headquartered in another Member State. The legal basis for this is the E-Evidence Regulation, which provides for the issuance of European Production Orders and Preservation Orders. This mechanism operates in conjunction with the Representative Directive, under which digital corporations offering services within the European Union must designate at least one establishment or a legal representative in an EU Member State to whom such orders can be addressed.
These legislative developments are based on the assumption that the existing system of cross-border evidence gathering is not sufficiently effective and no longer adequately meets the requirements of efficient investigations in the digital age, insofar as it relies primarily on intergovernmental cooperation and, within the European Union, is built upon the concepts of mutual recognition and mutual trust. Rather, in light of the distinctive characteristics of the digital sphere ("data is different"), a fundamental reorientation of judicial cooperation in criminal matters appears necessary. To assess the validity of this assumption, Peter Meißner first examines the various models for obtaining digital evidence. Drawing on a comprehensive analysis of EU constitutional law, he focuses in particular on the question of whether the new mechanism established by, and implemented through, the E-Evidence Regulation ensures a sufficient minimum level of protection for (EU) fundamental rights. In this context, he also considers whether digital corporations may legitimately be required to review incoming orders for compliance with fundamental rights-a development often described as the "privatization of mutual legal assistance." Furthermore, the study addresses key issues concerning both the admissibility of the instrument and its practical effectiveness, including its compatibility with the division of competences within the European Union and potential conflicts with United States law.