The Balance of Efficiency and Fundamental Rights in the EU e-Evidence Regulation

Abstract

The recently enacted EU e-Evidence Regulation improves efficient access to electronic evidence by allowing authorities in one Member State to send orders for electronic evidence directly to service providers in another Member State. Because the law is based on mutual trust, there are minimum fundamental rights safeguards in the law. This article argues that these safeguards are properly balanced with efficiency so long as there is mutual trust in the rule of law in all Member States. However, where there are concerns over illiberalism in some Member States, further fundamental rights protections are needed.

Keywords: electronic evidence, digital evidence, cross border access, criminal investigations, criminal procedure, European production order, European investigation order, digital evidence, data sovereignty, fundamental rights, due process, mutual recognition, mutual trust