THE NEW E-EVIDENCE REGULATION:PROBLEM SOLVED OR OPENING OF A PANDORA’S BOX?

CPDP 2023 - DAY 3
AREA 42 MIDI - SESSION 3
Organised by University of Luxembourg (LU)
Moderator Mark Cole, University of Luxembourg (LU)
Speakers Vanessa Franssen, University of Liège and KU Leuven (BE);
Stanisław Tosza, University of Luxembourg (LU); Erik Valgaeren,
Stibbe (BE); Martyna Kusak, University of Poznań (PL); Marc van der
Ham, National Office of the Dutch Prosecution Service (NL)
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?