E-Evidence Regulation in Force: Efficiency vs Privatisation of Law Enforcement

In this insight piece, author Oliver Michael Loksa (Schoenherr) looks at the EU’s new Regulation on European Production and Preservation Orders for electronic evidence, which has applied since August 18, 2026. The Regulation allows competent authorities, under certain conditions, to request electronic evidence directly from service providers in other EU Member States, rather than relying exclusively on traditional cross-border judicial cooperation.

The Regulation applies broadly to service providers, including electronic communications providers, cloud and hosting services, online marketplaces, forums, gaming platforms, and videoconferencing services. It establishes two main mechanisms: Preservation Orders, which require relevant data to be retained, and Production Orders, which require stored electronic evidence to be provided. The rules vary depending on whether the requested information is subscriber, traffic, or content data, with stricter requirements applying to more sensitive categories.

Loksa also examines the Regulation’s procedural requirements, including notification obligations, strict response deadlines, and emergency procedures. Service providers may have as little as ten days to respond in ordinary cases and eight hours in emergencies. They can seek clarification of incomplete orders, raise certain conflicts with third-country law, and rely on specified grounds for refusal, although they generally have no independent remedy against the order itself.

The Regulation significantly increases service providers’ responsibilities in cross-border criminal investigations. Loksa concludes that companies should establish procedures for identifying, reviewing, and responding to orders within the prescribed deadlines, particularly given the potential penalties of up to 2% of worldwide annual turnover for non-compliance. While the framework promises faster access to electronic evidence for authorities, its complex requirements create substantial new compliance obligations for service providers…

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