The balance of efficiency and fundamental rights in the EU e-Evidence Regulation

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 this direct access mechanism is based on mutual trust, the law has minimum fundamental rights safeguards. 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, if there is no mutual trust, the notification requirements fall short of protecting fundamental rights, especially combined with the limited grounds of refusal available to the service provider. Mutual trust is on rocky ground in the EU, as ongoing concerns over illiberalism in some Member States demonstrate. Therefore, further fundamental rights protections are needed.