In January 2023 the EU legislators finally reached a compromise on the text of the E-Evidence Regulation (and its accompanying Directive). By the time this panel takes places the final adoption of these two instruments is expected. This ends a five-year legislative process and results in the creation of the European Production and Preservation Orders for cross-border gathering of electronic evidence for criminal proceedings, which are bound to become a major instrument of evidence gathering in the EU. The order is not without controversy and this panel will discuss some of the most pertinent issues: the real efficiency of the new system of e-evidence gathering, the role of the service providers as guardians of users’ fundamental rights, e-evidence gathering by countries with rule of law-concerns, and the role of the order for the defence.
• To what extent does the E-Evidence Regulation effectively address the needs and problems encountered by police and judicial authorities with respect to cross-border gathering of digital evidence, and what will the interplay between the new EU legal regime and national (pre-existing) procedures be?
• What will the formal and de facto role of private actors (Internet service providers) in assessing the European production orders be?
• What challenges does gathering of electronic evidence face in the EU Member States where the independence of the judiciary is questioned?
• What opportunities and challenges does the new E-Evidence Regulation offer for the defence?
• What opportunities and challenges does the new E-Evidence Regulation offer for the investigating and prosecuting services?