Since August 18, German and Italian judges have been able to request digital data from accounts hosted on platforms in other European Union countries within ten days, or in eight hours for urgent cases. This mechanism, part of the European e-Evidence regulation, allows judges to directly ask service providers for digital evidence, bypassing the authorities of the country where the data is stored. However, French judges do not have access to this tool due to the absence of a national law to implement the regulation. Several French judges have urged the government to adopt this framework without delay, as highlighted in an op-ed in Le Monde by Théodore Christakis, a professor of digital law, and judges Frédéric Macé and Jacques Martinon. They cited the tragic case of Lyhanna, an 11-year-old girl found dead in the Gers in June, to emphasize the need for investigators to quickly access digital evidence, often from foreign companies.
German and Italian judges have been using the e-Evidence regulation for a month, while French investigators are still waiting for a legal framework to enable them to use it. According to the regulation, a judge can directly request digital evidence from a service provider in another EU country, avoiding the need to go through the local authorities. European estimates cited in the op-ed indicate that in 85% of criminal investigations, investigators need digital evidence, and for more than half of these, it must be obtained from another country. Magistrate Myriam Quémener, a specialist in digital law, explained that the first step in murder investigations often involves retrieving all digital media and requesting data from all service providers.
In the first half of 2024, Meta transmitted twenty times more personal data to French authorities than it did ten years ago, according to its transparency reports. However, for data stored outside France, French judges had to rely on judicial assistance requests or European investigation decisions, which typically take ten months and 120 days, respectively. Responses from companies varied significantly, and Telegram previously ignored French judicial requests until its founder, Pavel Durov, was formally charged in late August 2024. Now, a judge from a country that has implemented the regulation can issue an European production injunction to a platform's legal representative, who must respond within ten days or eight hours in urgent cases.
Under the e-Evidence regulation, platforms like Google and Meta, whose European headquarters are in Ireland, must designate a legal representative in the EU to handle such requests. Only a judge can request traffic data and the content of communications, and the country where the service provider is based can refuse the request in sensitive cases to protect fundamental rights. France wanted these safeguards, as noted by the authors of the op-ed. However, France is not yet on the list of countries ready to apply the e-Evidence regulation. The European Commission's list, published on August 27, includes Germany, Italy, Ireland, and Sweden, but not France. The French government submitted the names of authorized judicial authorities to Brussels in August, nearly a year late, but the document has been criticized for allowing prosecutors to request data without judicial validation, as required by the regulation. Additionally, the criminal procedure code does not include provisions for issuing these injunctions, and the chancellery omitted the regulation in its April 13 circular to prosecutors.
European e-Evidence Regulation Implementation Varies Across Member States
AI-rewritten from original reportingHow it works
e-evidencedigital-lawcross-border-datajudicial-accesseu-regulationfrance-justice
Original sources:
- 🇫🇷Clubic



