Electronic evidence in criminal proceedings – designated establishments and legal representatives of service providers

SUMMARY OF:

Directive (EU) 2023/1544 on harmonised rules on the designation of designated establishments and the appointment of legal representatives for the purpose of gathering electronic evidence in criminal proceedings

WHAT IS THE AIM OF THE DIRECTIVE?

The directive is part of a package that aims to facilitate and speed up access to electronic evidence used to investigate and prosecute criminal offences, regardless of the location of the data.

All service providers offering services in the European Union (EU) must designate an establishment or appoint a legal representative to be responsible for receiving, complying with and enforcing decisions and orders. The objective is to ensure that all service providers operating in the EU have the same obligations regarding access to electronic evidence (e-Evidence).

KEY POINTS

Electronic evidence (e-Evidence refers to data stored by or on behalf of a service provider, in an electronic form, that is used to investigate and prosecute criminal offences, including subscriber data, data used for identifying the user, traffic data and content data.

For the purposes of the directive, a service provider is anyone providing one or more of the following categories of services (except for financial services):

electronic communication services, such as internet access services or interpersonal communications services;
internet domain name and IP numbering services, such as IP address assignment, domain name registries and related privacy and proxy services;
other information society services which enable users to communicate with each other or which store or process data on behalf of the user, such as social networks, online marketplaces and other hosting service providers.

Designated establishment and legal representative

EU Member States must ensure that:

service providers offering services in the EU designate or appoint at least one addressee to receive, comply with and enforce decisions and orders falling within the scope of this directive, issued by competent authorities of Member States to gather evidence in criminal proceedings:
- service providers established in the EU specify a designated establishment,
- service providers not established in the EU appoint a legal representative;
addressees are established or reside in a Member State where the service providers offer their services;
addressees can be subject to enforcement procedures;
the decisions and orders issued by the competent authorities for gathering evidence in criminal proceedings are addressed to the designated establishment or legal representative;
service providers give their designated establishments and legal representatives the necessary powers and resources to comply;
the designated establishment, the legal representative and the service provider can be held jointly and severally liable for non-compliance and may be subject to penalties;
establishments or legal representatives need to be designated within 6 months of the legislation being transposed into national law;
each service provider supplies their respective contact details and any changes, in writing, to the central authority of the Member State where its designated establishment is located or where its legal representative resides.

Penalties

Member States must:

set out rules on effective, proportionate and dissuasive penalties to be applied to infringements of national laws adopted under this directive and take all measures necessary to ensure that they are implemented;
notify the European Commission of these rules and any subsequent amendments;
inform the Commission annually about non-compliant service providers, relevant enforcement action taken against them and the penalties imposed.

Central authorities

Member States must designate one or more central authorities to ensure that this directive is applied consistently and proportionately. The central authorities coordinate and cooperate with each other and where relevant with the Commission, and provide any appropriate information and assistance to each other, particularly on enforcement actions.

FROM WHEN DO THE RULES APPLY?

The directive has to be transposed into national law by 18 February 2026. These rules should apply from the same date.

BACKGROUND

The directive is part of a package that includes a regulation on European production and preservation orders for electronic evidence in criminal proceedings and for the execution of custodial sentences following criminal proceedings (see summary).

For further information, see:

e-Evidence (European Commission).

MAIN DOCUMENT

Directive (EU) 2023/1544 of the European Parliament and of the Council of 12 July 2023 laying down harmonised rules on the designation of designated establishments and the appointment of legal representatives for the purpose of gathering electronic evidence in criminal proceedings (OJ L 191, 28.7.2023, pp. 181–190).