Directive (EU) 2023/1544 of the European Parliament and of the Council of 12 July 2023 laying down harmonised rules on the designation of designated establishments and the appointment of legal representatives for the purpose of gathering electronic evidence in criminal proceedings

• CELEX: Directive (EU) 2023/1544
• Articles: 10

Article 1 Subject matter and scope

1.   This Directive lays down the rules on the designation of designated establishments and the appointment of legal representatives of certain service providers that offer services in the Union, for the receipt of, compliance with and enforcement of decisions and orders issued by competent authorities of the Member States, for the purposes of gathering electronic evidence in criminal proceedings.

2.   This Directive applies to decisions and orders for the purpose of gathering electronic evidence on the basis of Regulation (EU) 2023/1543, Directive 2014/41/EU and of the Convention established by the Council in accordance with Article 34 of the Treaty on European Union, on Mutual Assistance in Criminal Matters between Member States of the Union. This Directive equally applies to decisions and orders for the purpose of gathering electronic evidence on the basis of national law addressed by a Member State to a natural or legal person acting as legal representative or designated establishment of a service provider on the territory of that Member State.

3.   This Directive is without prejudice to the powers of national authorities in accordance with Union and national law to address service providers established on their territory directly, for the purposes of gathering electronic evidence in criminal proceedings.

4.   Member States shall not impose on service providers obligations additional to those deriving from this Directive, in particular with regard to the designation of designated establishments or the appointment of legal representatives, for the purposes set out in paragraph 1.

5.   This Directive applies to service providers as defined in Article 2, point (1), that offer their services in the Union. It does not apply to service providers established on the territory of a single Member State that offer services exclusively on the territory of that Member State.

Article 2 Definitions

For the purpose of this Directive, the following definitions apply:

(1)

‘service provider’ means any natural or legal person that provides one or more of the following categories of services, with the exception of financial services referred to in Article 2(2), point (b), of Directive 2006/123/EC of the European Parliament and of the Council  ( 14 ) :

(a)

electronic communications services as defined in Article 2, point (4), of Directive (EU) 2018/1972;

(b)

internet domain name and IP numbering services, such as IP address assignment, domain name registry, domain name registrar and domain name-related privacy and proxy services;

(c)

other information society services as referred to in Article 1(1), point (b), of Directive (EU) 2015/1535 that:

(i)

enable their users to communicate with each other; or

(ii)

make it possible to store or otherwise process data on behalf of the users to whom the service is provided, provided that the storage of data is a defining component of the service provided to the user;

(2)

‘offering services on the territory of a Member State’ means:

(a)

enabling natural or legal persons in a Member State to use the services listed in point (1); and

(b)

having a substantial connection, based on specific factual criteria, to the Member State referred to in point (a); such a substantial connection is to be considered to exist where the service provider has an establishment in that Member State, or, in the absence of such an establishment, where there is a significant number of users in that Member State, or where there is targeting of activities towards that Member State;

(3)

‘offering services in the Union’ means:

(a)

enabling natural or legal persons in a Member State to use the services listed in point (1); and

(b)

having a substantial connection, based on specific factual criteria, to the Member State referred to in point (a); such a substantial connection is to be considered to exist where the service provider has an establishment in a Member State, or, in the absence of such an establishment, where there is a significant number of users in one or more Member States, or where there is targeting of activities towards one or more Member States;

(4)

‘establishment’ means an entity that actually pursues an economic activity for an indefinite period through a stable infrastructure from where the business of providing services is carried out or the business is managed;

(5)

‘designated establishment’ means an establishment with legal personality designated in writing by a service provider established in a Member State taking part in a legal instrument referred to in Article 1(2), for the purposes referred to in Article 1(1) and Article 3(1);

(6)

‘legal representative’ means a natural or legal person appointed in writing by a service provider not established in a Member State taking part in a legal instrument referred to in Article 1(2), for the purposes referred to in Article 1(1) and Article 3(1).

Article 3 Designated establishments and legal representatives

1.   Member States shall ensure that service providers offering services in the Union designate or appoint at least one addressee for the receipt of, compliance with and enforcement of decisions and orders falling within the scope laid down in Article 1(2) (‘decisions and orders falling within the scope laid down in Article 1(2)’) issued by competent authorities of Member States for the purpose of gathering evidence in criminal proceedings, as follows:

(a)

for service providers established in the Union with legal personality, the Member States where the service providers are established shall ensure that such service providers designate the designated establishment or designated establishments responsible for the activities described in the introductory part of this paragraph;

(b)

for service providers that are not established in the Union, with legal personality, Member States shall ensure that such service providers offering services on their territory appoint the legal representative or legal representatives responsible for the activities described in the introductory part of this paragraph in Member States taking part in the instruments referred to in Article 1(2);

(c)

for service providers established in Member States not taking part in the instruments referred to in Article 1(2), Member States shall ensure that such service providers offering services on their territory appoint the legal representative or legal representatives responsible for the activities described in the introductory part of this paragraph in Member States taking part in such instruments.

2.   Member States shall ensure that the addressees referred to in paragraph 1:

(a)

are established or reside in a Member State where the service providers offer their services; and

(b)

can be subject to enforcement procedures.

3.   Member States shall ensure that decisions and orders falling within the scope laid down in Article 1(2) are addressed to the designated establishment or legal representative designated or appointed for that purpose in accordance with paragraph 1 of this Article.

4.   Member States shall ensure that service providers established or offering services on their territory provide their designated establishments and legal representatives with the necessary powers and resources to comply with decisions and orders falling within the scope laid down in Article 1(2) received from a Member State. Member States shall also verify that the designated establishments established or legal representatives residing on their territory have received from the service providers the necessary powers and resources to comply with those decisions and orders received from a Member State and that they cooperate with the competent authorities when receiving those decisions and orders, in accordance with the applicable legal framework.

5.   Member States shall ensure that both the designated establishment or the legal representative and the service provider can be held jointly and severally liable for non-compliance with obligations deriving from the applicable legal framework upon the receipt of decisions and orders falling within the scope laid down in Article 1(2), so that each of them may be subject to penalties for non-compliance by any of them. In particular, Member States shall ensure that it is not possible for the service provider or the designated establishment, or the legal representative where applicable, to use the lack of appropriate internal procedures between the service provider and the designated establishment or the legal representative as a justification for non-compliance with those obligations. Joint and several liability shall not apply for actions or omissions of either the service provider or the designated establishment, or the legal representative where applicable, which constitute a criminal offence in the Member State applying the penalties.

6.   Member States shall ensure that service providers that offer services in the Union on 18 February 2026 have the obligation to designate designated establishments or to appoint legal representatives by 18 August 2026 and that service providers that start offering services in the Union after 18 February 2026 have the obligation to designate designated establishments or to appoint legal representatives within six months of the date when they start offering services in the Union.

Article 4 Notifications and languages

1.   Member States shall ensure that each service provider established or offering services in their territory notifies in writing the central authority, as designated pursuant to Article 6, of the Member State where its designated establishment is established or where its legal representative resides, of the contact details for that establishment or legal representative, and of any changes thereto.

2.   The notification referred to in paragraph 1 shall specify the official language or languages of the Union, as referred to in Council Regulation No 1  ( 15 ) , in which the legal representative or designated establishment can be addressed. Those languages shall include one or more of the official languages as laid down in the national law of the Member State where the designated establishment is established or where the legal representative resides.

3.   Where a service provider designates several designated establishments or appoints several legal representatives in accordance with Article 3(1), Member States shall ensure that such service providers specify, in the notification referred to in paragraph 1 of this Article, the precise territorial scope of the designation or appointment of those designated establishments or legal representatives. The notification shall specify the official language or languages of the Union or Member States in which each of the designated establishments or legal representatives can be addressed.

4.   Member States shall ensure that the information notified to them in accordance with this Article is made publicly available on a dedicated web page of the European Judicial Network in criminal matters. Member States shall ensure that that information is regularly updated. That information may be further disseminated to facilitate access by competent authorities.

Article 5 Penalties

Member States shall lay down the rules on penalties applicable to infringements of national provisions adopted pursuant to Articles 3 and 4 and shall take all measures necessary to ensure that they are implemented. The penalties provided for shall be effective, proportionate and dissuasive. Member States shall, by 18 February 2026, notify the Commission of those rules and of those measures and shall notify it, without delay, of any subsequent amendment affecting them. Member States shall also inform the Commission on an annual basis about non-compliant service providers, relevant enforcement action taken against them and the penalties imposed.

Article 6 Central authorities

1.   In accordance with their legal systems, Member States shall designate one or more central authorities to ensure that this Directive is applied in a consistent and proportionate manner.

2.   Member States shall inform the Commission of the central authority, or central authorities, they designate pursuant to paragraph 1. The Commission shall forward a list of designated central authorities to the Member States and make it publicly available.

3.   Member States shall ensure that their central authorities coordinate and cooperate with each other and, where relevant, with the Commission, and that the central authorities provide any appropriate information and assistance to each other in order to apply this Directive in a consistent and proportionate manner. Such coordination, cooperation and provision of information and assistance shall cover, in particular, enforcement actions.

Article 7 Transposition

1.   Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 18 February 2026. They shall immediately communicate the text of those measures to the Commission.

2.   When Member States adopt those measures, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. Member States shall determine how such reference is to be made.

3.   Member States shall communicate to the Commission the text of the measures of national law which they adopt in the field covered by this Directive.

Article 8 Evaluation

By 18 August 2029, the Commission shall carry out an evaluation of this Directive. The Commission shall transmit the evaluation report to the European Parliament and the Council. The evaluation shall be conducted in accordance with the Commission’s better regulation guidelines. Member States shall provide the Commission with the information necessary for the preparation of that report.

Article 9 Entry into force

This Directive shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union .

Article 10 Addressees

This Directive is addressed to the Member States in accordance with the Treaties.