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(1) Network-based services can be provided from anywhere and do not require physical infrastructure, premises or staff in the country where the relevant service is offered, or in the internal market itself. As a consequence, it can be difficult to apply and enforce obligations laid down in national and Union law which apply to the service providers concerned, in particular the obligation to comply with an order or a decision by a judicial authority. This is the case in particular in criminal law, where Member States’ authorities face difficulties with serving, ensuring compliance with and enforcing their decisions, in particular where relevant services are provided from a location outside their territory. Against that background, Member States have taken a variety of disparate measures to more effectively apply and enforce their legislation. This includes measures for addressing service providers to obtain electronic evidence that is of relevance to criminal proceedings. To that end, some Member States have adopted, or are considering adopting, legislation imposing mandatory legal representation within their own territory, for a number of service providers offering services in that territory. Such requirements create obstacles to the free provision of services within the internal market.

(2) There is a risk that, in the absence of a Union-wide approach, Member States will try to overcome existing shortcomings related to gathering electronic evidence in criminal proceedings by imposing disparate national obligations. Such disparate national obligations would create further obstacles to the free provision of services within the internal market.

(3) The absence of a Union-wide approach results in legal uncertainty affecting both service providers and national authorities. Disparate and possibly conflicting obligations apply to service providers established or offering services in different Member States, which results in such service providers being subject to different penalties in the event of violations. Such divergences in the framework for criminal proceedings will likely further expand because of the growing importance of communication and information society services in our daily lives and our societies. Such divergences not only represent an obstacle to the proper functioning of the internal market, but also entail problems for the establishment and correct functioning of the Union’s area of freedom, security and justice.

(4) To avoid divergences in the legal framework and to ensure that undertakings active in the internal market are subject to the same or similar obligations, the Union has adopted a number of legal acts in related fields such as data protection, namely Regulation (EU) 2016/679 of the European Parliament and of the Council and Directive 2002/58/EC of the European Parliament and of the Council . To increase the level of protection for the data subjects, Regulation (EU) 2016/679 provides for the designation of a legal representative in the Union by controllers or processors that are not established in the Union but offer goods or services to data subjects in the Union or monitor the behaviour of data subjects if their behaviour takes place within the Union, unless the processing of data is occasional, does not include processing, on a large scale, of special categories of personal data or the processing of personal data relating to criminal convictions and offences, and is unlikely to result in a risk to the rights and freedoms of natural persons, taking into account the nature, context, scope and purposes of the processing or if the controller or processor is a public authority or body.

(5) By setting out harmonised rules on the designation of designated establishments and the appointment of legal representatives of certain service providers in the Union for 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, the existing obstacles to the free provision of services should be removed, and the imposition of divergent national approaches in that regard, in the future, should be prevented. A level playing field for service providers should therefore be established. Depending on whether service providers are or are not established in the Union, Member States should ensure that service providers designate a designated establishment or appoint a legal representative. Those harmonised rules on the designation of designated establishments and the appointment of legal representatives should not affect the obligations on service providers under other Union legislation. Moreover, more effective criminal law enforcement in the Union’s area of freedom, security and justice should be facilitated.

(6) The designated establishments and legal representatives provided for in this Directive should serve as addressees for decisions and orders for the purpose of gathering electronic evidence on the basis of Regulation (EU) 2023/1543 of the European Parliament and of the Council , of Directive 2014/41/EU of the European Parliament and of the Council and of the Convention established by the Council in accordance with Article 34 of the Treaty on the European Union, on Mutual Assistance in Criminal Matters between Member States of the European Union , including where those decisions and orders are transmitted in the form of a certificate. Recourse to the designated establishment or the legal representative should be in accordance with the procedures set out in the instruments and legislation applicable to the judicial proceedings, including where the instruments permit the direct serving of orders in cross-border situations on the designated establishment or legal representative of the service provider, or are based on cooperation between competent judicial authorities. The competent authorities of the Member State where the designated establishment is established or the legal representative resides should act in accordance with the role set out for them in the respective instrument where involvement is provided for. Member States should also be able to address decisions and orders for the purpose of gathering electronic evidence on the basis of national law to a natural or legal person acting as legal representative or designated establishment of a service provider on their territory.

(7) Member States should ensure that service providers that offer services in the Union on 18 February 2026 have the obligation to designate at least one designated establishment or to appoint at least one legal representative by 18 August 2026 and that service providers that start offering services in the Union after that date designate at least one designated establishment or appoint at least one legal representative within six months of the date when they start offering services in the Union. Without prejudice to data protection safeguards, such designated establishment or legal representative could be shared between several service providers, in particular by service providers that are small or medium-sized enterprises.

(8) The obligation to designate a designated establishment or to appoint a legal representative should apply to service providers that offer services in the Union, meaning in one or more Member States. Situations in which a service provider is established on the territory of a Member State and offers services exclusively on the territory of that Member State should not be covered by this Directive.

(9) For the purpose of gathering electronic evidence in criminal proceedings, Member States should be able to continue addressing service providers established on their territory for purely domestic situations in accordance with Union law and their respective national law. Notwithstanding the possibilities currently provided for in domestic law to address service providers on their own territory, Member States should not circumvent the principles underlying this Directive or Regulation (EU) 2023/1543.

(10) Determining whether a service provider offers services in the Union requires an assessment as to whether the service provider enables natural or legal persons in one or more Member States to use its services. However, the mere accessibility of an online interface in the Union, such as for instance the accessibility of a website or an e-mail address or other contact details of a service provider or an intermediary, taken in isolation, should be considered insufficient to determine that a service provider offers services in the Union within the meaning of this Directive.

(11) Determining whether a service provider offers services in the Union requires, in addition to assessing whether the service provider enables natural or legal persons in one or more Member States to use its services, establishing whether there is a substantial connection to the Union. Such a substantial connection to the Union should be considered to exist where the service provider has an establishment in the Union. In the absence of such an establishment, the criterion of a substantial connection should be based on specific factual criteria such as the existence of a significant number of users in one or more Member States, or the targeting of activities towards one or more Member States. The targeting of activities towards one or more Member States should be determined on the basis of all relevant circumstances, including factors such as the use of a language or a currency generally used in that Member State, or the possibility of ordering goods or services. The targeting of activities towards a Member State could also be derived from the availability of an application (‘app’) in the relevant national app store, from the provision of local advertising or advertising in the language generally used in that Member State, or from the handling of customer relations, such as by the provision of customer service in the language generally used in that Member State. A substantial connection should also be considered to exist where a service provider directs its activities towards one or more Member States as set out in Regulation (EU) No 1215/2012 of the European Parliament and of the Council . On the other hand, provision of a service for the purpose of mere compliance with the prohibition of discrimination laid down in Regulation (EU) 2018/302 of the European Parliament and of the Council should not, without additional grounds, be considered as directing or targeting activities towards a given territory within the Union. The same considerations should apply when determining whether a service provider offers services in the territory of a Member State.

(12) Different instruments falling within the scope of Title V, Chapter 4, of the Treaty on the Functioning of the European Union apply to the cooperation between Member States when gathering evidence in criminal proceedings. As a consequence of the variable geometry that exists in the Union’s area of freedom, security and justice, there is a need to ensure that this Directive does not facilitate the creation of further disparities or obstacles to the provision of services in the internal market by allowing service providers offering services on the territory of Member States to designate designated establishments or appoint legal representatives within Member States that do not take part in the relevant legal instruments. Therefore, at least one designated establishment or legal representative should be designated or appointed in a Member State that participates in the relevant Union legal instruments to avoid the risk of weakening the effectiveness of the designation or appointment provided for in this Directive and to make use of the synergies of having a designated establishment or a legal representative for the receipt of, compliance with and enforcement of decisions and orders falling within the scope of this Directive, including under Regulation (EU) 2023/1543, Directive 2014/41/EU and the Convention established by the Council in accordance with Article 34 of the Treaty on the European Union, on Mutual Assistance in Criminal Matters between Member States of the Union. In addition, designating a designated establishment or appointing a legal representative, which could also be utilised to ensure compliance with national legal obligations, would make it possible to benefit from the synergies of having a clear point of access to address service providers for the purpose of gathering evidence in criminal proceedings.

(13) Service providers should be free to choose in which Member State they designate their designated establishment or, where applicable, appoint their legal representative, and Member States should not be able to restrict that freedom of choice, for example by imposing an obligation to designate the designated establishment or to appoint the legal representative on their territory. However, this Directive should also provide for certain restrictions with regard to that freedom of choice of service providers, in particular concerning the fact that the designated establishment should be established, or where applicable, the legal representative should reside, in a Member State where the service provider provides services or is established, as well as provide for an obligation to designate a designated establishment or to appoint a legal representative in one of the Member States participating in a legal instrument referred to in this Directive. The sole appointment of a legal representative should not be considered to constitute establishment of the service provider.