All evidence is equal, but electronic evidence is more equal than any other: The relationship between the European Investigation Order and the European Production Order

The European Investigation Order (EIO) was supposed to offer a comprehensive solution to cross-border gathering of evidence within the area of freedom, security and justice replacing a patchwork of instruments and providing for one single standardised order for all types of evidence. However, not even a year since the deadline for its implementation had passed, the Commission proposed an instrument that would be applicable for electronic evidence: European Production Order (EPO). This initiative was born from an increasing frustration in gathering this type of evidence and the conviction that the EIO is not suitable for that purpose. The need for digital evidence (according to the estimate of the EU Commission, 85% of criminal investigations require electronic evidence) is a direct consequence of the place information and communication technology has taken in everyday life. However, electronic evidence differs in a number of ways from ‘real-life’ evidence rendering current legal framework extremely impractical for law enforcement. One of the major obstacles that law enforcement authorities encounter is the fact that the data they need are often stored abroad or by a foreign service provider. Both instruments were conceived because of the need to gather evidence across borders; however, the transnational component is different (evidence being abroad vs. service provider being foreign). Both instruments subject ‘European citizens to the investigative machinery of any other Member State’, however, in a different way. If the e-evidence package is adopted, it will create a dual system of cross-border gathering of evidence, with different philosophy, procedure, enforcement and protective framework. The goal of this article is to analyse and compare two different models of acquiring evidence that these two instruments offer as well as to delimitate their (non-exclusive) scope. The concluding part will provide a reflection on the systemic consequences of this duality of instruments and of introducing the EPO model in particular.