by

Justyna Sarkowicz 

CyJurII Theorist

on 4 October 2025

Abstract

The subject of this article is the authority recognising and executing a European Production Order (EPOC) for electronic evidence. This entity will be analysed on the basis of the provisions of Regulation (EU) 2023/1543 of the European Parliament and of the Council of 12 July 2023 on European Production Orders and European Preservation Orders for electronic evidence in criminal proceedings and in proceedings concerning the execution of custodial sentences[1]. The article will indicate the desired legislative direction from the perspective of safeguarding the rights of the suspect/accused.

Keywords: legal representative of the service provider; private entity; judicial authority; EU criminal law; mutual recognition; electronic evidence.

Introduction

In April 2018, the European Commission proposed new rules to enable law enforcement and judicial authorities to obtain electronic evidence more quickly and easily. These were reflected in the 'Proposal for a Regulation of the European Parliament and of the Council on European Production and Preservation Orders for electronic evidence in criminal matters' and in the accompanying 'Directive of the European Parliament and of the Council laying down harmonised rules on the appointment of legal representatives for the purpose of gathering evidence in criminal proceedings'[2].

Regulation (EU) 2023/1543 of the European Parliament and of the Council entered into force on 18 August 2023. However, its provisions shall apply as from 18 August 2026, following a transitional period granted to Member States to adapt to its requirements[3].

When presenting the legislative proposal, the European Commission emphasised the growing importance of electronic evidence in criminal proceedings, the fact that cross-border evidence requests now dominate criminal investigations, and that criminals and terrorists must not be allowed to exploit modern communication technologies to conceal their activities and escape criminal liability. It also stressed that the authorities continue to rely on overly complex methods – and although judicial cooperation and mutual legal assistance are necessary, the process is currently too slow and cumbersome, enabling criminals to resort to state-of-the-art technologies. Authorities must therefore be equipped with modern investigative tools[4].

The article will next focus on the characteristics of the legal representative of the service provider, who has been designated to recognise and execute European Production Orders for electronic evidence. The conclusion will assess whether the legal representative, in this form, is a suitable entity to carry out actions in the European procedure concerning the production of electronic evidence, and it will outline the desirable legislative direction from the perspective of safeguarding the rights of the suspect and the accused.

 1.     The Legal Representative as the Authority Recognising and Executing the European Production Order

The authority that recognizes and executes the European Production Order for electronic evidence is the legal representative of the service provider. Legal standing in proceedings concerning the collection of electronic evidence covers the recognition and execution phase, and in the event of non-execution, enforcement proceedings[5].

In the final version of the Regulation on the European Production Order and the European Preservation Order for electronic evidence in criminal proceedings and the execution of a custodial sentence after criminal proceedings, the legislator distinguished categories of evidence transferred in order to obtain traffic data, with the exception of data requested solely for the purpose of identifying the user, as defined in Article 3(10), or in order to obtain content data[6]. In these proceedings, the issuing authority notifies the enforcing authority of the execution of the order by transmitting the European Production Order Certificate to that authority – at the same time as transmitting the said certificate to the addressee in accordance with Article 9(1) and (2), i.e. to the legal representative of the service provider in the same way as in the case of evidence in which the judicial authority is completely bypassed[7].

This has a suspensive effect, meaning that until the request is reviewed by a judicial authority, the service provider's legal representative will not take any action to provide the requested evidence. Suspension of enforcement does not apply to exceptional circumstances[8].

An exception is when, at the time of issuing the order, the issuing authority has reasonable grounds to believe that:[9]

(a) the offence has been committed, is being committed or is likely to be committed in the issuing State[10] and

(b) the person whose data is covered by the order is resident in the issuing state[11].

In the above cases, the issuing authority transmits the order directly to the legal representative of the service provider, i.e. the judicial authority is bypassed in the process of recognising and executing the European Production Order[12].

Given the above, it should be remembered that, as a rule, the legal representative of the service provider, who is – let us recall – a private entity, is the authority recognizing and executing the order, with the above-mentioned situations being the exceptions. It should be emphasized that even in these specified cases, the private entity may be solely competent to recognize and execute the order, and therefore the judicial authority will not be involved at all in the aforementioned phase of transmitting electronic evidence[13].

The EPOC shall be transmitted directly by any means capable of producing a written record and under conditions that enable the addressee to establish its authenticity. Where service providers, Member States, or EU bodies have established dedicated platforms or other secure channels to handle data requests from law enforcement and judicial authorities, the issuing authority may also choose to transmit the EPOC through these channels[14].

It should be remembered that the legal representative of the service provider is a private entity that may not have the legal knowledge or tools to verify the existence of the grounds for issuance and subsequent enforcement. According to Article 3(7)[15] "legal representative" means a legal or natural person designated in writing by the service provider.

The legislator therefore left it up to the service provider to choose the entity serving as the legal representative – this may be a natural or legal person, whether a lawyer or not. The legislator – let us repeat – did not impose any conditions on the service provider in this regard[16].

Given the above, there are two possibilities. If the service provider's legal representative is a specialized lawyer, this entity will guarantee legal knowledge and legal tools. However, if a non-lawyer is appointed as the legal representative, this person may not have legal knowledge or knowledge of legal instruments. Therefore, it can be assumed a priori that this representative does not guarantee the proper recognition and subsequent execution of the European Production Order[17].

 Conclusion

The speed of obtaining electronic evidence was the main reason for granting the authority to recognize and execute European Production Orders to the legal representative of the service provider, who is a private entity. It must be stressed that no conditions have been imposed on this entity – it may therefore be any person designated by the service provider, whether legally qualified or not. This is justified by the particular nature of electronic evidence and the concern about its possible irreversible loss. However, granting such competence to a private actor is inconsistent with the principle of mutual recognition of judicial decisions, as this entity lacks the features characterising a judicial authority. The legal representative of the service provider is a private actor whose primary objective is financial benefit. Moreover, no requirements concerning legal expertise have been imposed on them. This undoubtedly poses a risk to the rights of the suspect/accused and undermines the right to a fair trial.

To guarantee respect for the rights of the suspect/accused in cross-border proceedings concerning the production of electronic evidence, a judicial authority should be established as competent to recognise and execute a European Production Order in every category of such evidence. Entrusting these competences exclusively to judicial authorities would fully realise the principle of mutual recognition of judicial decisions.

[1] Regulation (EU) 2023/1543/EU of the European Parliament and of the Council of 12 July 2023 on European production orders and European preservation orders for electronic evidence in criminal proceedings and in criminal proceedings for the execution of custodial sentences (OJ L 2023, 191, 118).

[2] Regulation (EU) 2023/1543/EU of the European Parliament and of the Council of 12 July 2023 on European production orders and European preservation orders for electronic evidence in criminal proceedings and in criminal proceedings for the execution of custodial sentences (OJ L 2023, 191, 118); Directive 2023/1544/EU of the European Parliament and of the Council of 12 July 2023 on harmonised rules for the designation of designated facilities and legal representatives for the gathering of electronic evidence in criminal proceedings, OJ L 2023, 191, 118; S. Tosza, The European commission’s proposal on cross-border access to e-evidence, Eucrim, 2018, ss. 212–219.

[3] Regulation (EU) 2023/1543/EU of the European Parliament and of the Council of 12 July 2023 on European production orders and European preservation orders for electronic evidence in criminal proceedings and in criminal proceedings for the execution of custodial sentences (OJ L 2023, 191, 118).

[4] European Commission, Press Release, Unión de la Seguridad: la Comisión facilita el acceso a las pruebas electrónicas, Brussels, 17/04/2018.

[5] J. Sarkowicz, Legal representative of a service provider in cross-border proceedings regarding the collection of e-evidence – de lege lata remarks and de lege ferenda postulates from the perspective of protecting the rights of the suspected accused, "Prokuratura i Prawo" 2023, 6, p. 103.

[6] Regulation (EU) 2023/1543/EU of the European Parliament and of the Council of 12 July 2023 on European production orders and European preservation orders for electronic evidence in criminal proceedings and in criminal proceedings for the execution of custodial sentences (OJ L 2023, 191, 118).

[7] Regulation (EU) 2023/1543/EU of the European Parliament and of the Council of 12 July 2023 on European production orders and European preservation orders for electronic evidence in criminal proceedings and in criminal proceedings for the execution of custodial sentences (OJ L 2023, 191, 118).

[8] J. Sarkowicz, The Role of the Principle of Mutual Recognition of Judgments in European Procedure for Collecting E-Evidence. Considerations from a Comparative Perspective, "Prokuratura i Prawo" 2023, 12, p. 168.

[9] Regulation (EU) 2023/1543/EU of the European Parliament and of the Council of 12 July 2023 on European production orders and European preservation orders for electronic evidence in criminal proceedings and in criminal proceedings for the execution of custodial sentences (OJ L 2023, 191, 118).

[10] Regulation (EU) 2023/1543/EU of the European Parliament and of the Council of 12 July 2023 on European production orders and European preservation orders for electronic evidence in criminal proceedings and in criminal proceedings for the execution of custodial sentences (OJ L 2023, 191, 118).

[11] Regulation (EU) 2023/1543/EU of the European Parliament and of the Council of 12 July 2023 on European production orders and European preservation orders for electronic evidence in criminal proceedings and in criminal proceedings for the execution of custodial sentences (OJ L 2023, 191, 118).

[12] J. Sarkowicz, The Role of the Principle of Mutual Recognition of Judgments in European Procedure for Collecting E-Evidence. Considerations from a Comparative Perspective, "Prokuratura i Prawo" 2023, 12, p. 168.

[13] J. Sarkowicz, „The principle of trust as a sine qua non condition for the proper application of the principle of mutual recognition of judicial decisions in the context of the European Production Order”, Zbornik Pravni Fakultet 2024/10, Travnik.

[14] D. Chankova, R. Voynova, Towards New European Regulation for Handling Electronic Evidence, „US–China Law Review” 2018, 3, p. 121–129.

[15] Regulation (EU) 2023/1543/EU of the European Parliament and of the Council of 12 July 2023 on European production orders and European preservation orders for electronic evidence in criminal proceedings and in criminal proceedings for the execution of custodial sentences (OJ L 2023, 191, 118).

[16] J. Sarkowicz, Przedstawiciel prawny usługodawcy w transgranicznym postępowaniu ws. gromadzenia e-dowodów – uwagi de lege lata i postulaty de lege ferenda z perspektywy ochrony praw podejrzanego oskarżonego, „Prokuratura i Prawo” 2023, 6, p. 108.

[17] J. Sarkowicz, Przedstawiciel prawny usługodawcy w transgranicznym postępowaniu ws. gromadzenia e-dowodów – uwagi de lege lata i postulaty de lege ferenda z perspektywy ochrony praw podejrzanego oskarżonego, „Prokuratura i Prawo” 2023, 6, p. 108.