Chapter 7 asks how it took more than five years for one of the most pressing legislative projects, seen as essential to enable law enforcement authorities all over the EU to effectively investigate crimes, to be resolved. The European Commission put forward the legislative package concerning e-evidence in criminal matters in 2018, but the legislative process was not concluded until June 2023. What can explain the divergences and delays that occurred, despite all parties having acknowledged the importance of the project? This chapter provides an overview of the difficulties that marked the negotiation process, as well as the solutions finally found, and serves as a very useful guide to e-evidence. It outlines the pre-history of e-evidence and the different stages of the negotiating process, before laying out the positions of the various actors on several issues that had to be negotiated. Finally, it focuses on the most contentious issue, namely the notification to be given, in some cases, by the issuing state to other states involved, permitting them to review the requests to service providers in order to ensure that human rights are protected and that no abuse occurs.

Chapter 16 comparatively examines the national legislation in EU member states in order to reveal common patterns and differences in legal rules and their practical application with respect to gathering digital evidence for the purpose of criminal investigations. The study is essentially based on the information provided in the preceding book chapters, covering seven national legal systems selected for this research: Belgium, Estonia, Germany, Ireland, Luxembourg, Poland and Spain. The comparative analysis investigates not only the rules on access to digital evidence but also their broader legislative context. Indeed, before analysing how data can be obtained, it is important to understand the legal terminology and categorisations used in the different legal systems, as well as the national rules on data retention in light of the case law of the Court of Justice of the EU.