The European Commission’s e-Evidence Proposal – Critical Remarks and Proposals for Changes

In response to problems that exist in practice pertaining to how law enforcement authorities in European Union Member States can obtain electronic evidence concerning the commission of a crime, on 17 April 2018 a Proposal for a Regulation of the European Parliament and of the Council on European Production and Preservation Orders for electronic evidence in criminal matters (COM(2018) 225 final, 2018/0108 (cod)) was published. The proposal contains a series of new solutions aimed at speeding up and facilitating cooperation within the EU on obtaining electronic evidence in criminal matters. It is worth examining how the specific solutions accepted and the way they have been formulated may affect the fundamental rights of participants in criminal proceedings, particularly when that impact may be adverse. From this perspective, a detailed analysis is made of what entities will be authorised to issue European Production Orders, in relation to what kinds of electronic evidence, and under what conditions.