German e-Evidence Transposition and Implementing Act: First reading in the German Parliament

On Friday (19 December 2025), the German Federal Parliament (Bundestag) will debate the government's draft bill for the transposition of the EU e-Evidence Directive (Directive (EU) 2023/1544) and the implementation of the EU e-Evidence Regulation (Regulation (EU) 2023/1543) in its first reading.

Background: The EU e-Evidence Package

The EU e-Evidence package is intended to simplify and accelerate cross-border access by law enforcement authorities to electronic evidence (subscriber data, traffic data and content data). The core instruments are the European Production Order and the European Preservation Order, which enable competent authorities to directly obligate service providers in other EU Member States to produce or preserve data. 

Service providers in the scope of application are providers of electronic communications services, internet domain name and IP numbering services, and information society services, insofar as they enable communication between users or data processing. Importantly, the Regulation does not only apply to companies based in the EU. Service providers established outside the EU that offer their services in the Union must also comply with the rules.

The e-Evidence Regulation is directly applicable in the EU Member States and will be enforceable from 18 August 2026. The e-Evidence Directive supplements the Regulation with organisational and sanctioning requirements for service providers. In particular, it obliges EU Member States to provide for rules on the establishment of so-called addressees who receive and execute e-Evidence orders ("designated establishments" or "appointed representatives"). The Directive must be transposed by EU Member States by 18 February 2026. 

We have described the e-Evidence mechanism, the underlying legal acts and the key compliance requirements in a previous insight article (see "e-Evidence Regulation: Key compliance takeaways for service providers by 2026").

Key elements of the draft German transposition and implementing act

For transposition and implementation, the draft bill provides for:

• Introduction of a new law, the Electronic Evidence Transposition and Implementing Act ("Elektronische-Beweismittel-Durchführungs-und-Umsetzungsgesetz", EBewMG)
• Adaptation of a provision of the German Telecommunications Act (TKG) to the e-Evidence package
• Introduction of two new data processing legal bases in the German Telecommunications and Digital Services Data Protection Act (TDDDG).

1. EBewMG – Overview of the regulatory structure

Part One
The first part contains the definitions, with reference to the e-Evidence Directive and Regulation.

Part Two (Transposition of the Directive):
Service providers with a connection to Germany are required to either designate an establishment in Germany or appoint a representative. Depending on the location of the establishment and the location where the service is provided, designation in another EU Member State may be required or optional. Designated establishments or representatives receive e-Evidence orders and ensure their execution. The designation/appointment must be notified to the national "Central Authority." In Germany, the Federal Office of Justice (BfJ) is to be designated as the German Central Authority. The second part of the EBewMG also regulates the powers of the BfJ in its function as the Central Authority.

Part Three (Implementation of the Regulation):
The third part of the EBewMG regulates procedural issues in connection with European Production Orders, in particular the responsibilities of public prosecutors and courts as well as legal remedies. Rules on the implementation of European Preservation Orders are currently lacking. The reason for this is that German law does not currently provide for any comparable domestic instrument for data preservation or prohibition of deletion. According to the German Federal Ministry of Justice (BMJV), this gap is to be closed in the near future by an amendment to the German Code of Criminal Procedure (StPO), with corresponding adjustments to the EBewMG to follow.

Part Four (Sanctions):

• The BfJ can impose sanctions of up to EUR 500,000 or up to 2% of the service provider's total turnover for violations of the obligation to designate an establishment or appoint a representative or for violations of the notification obligation.
• Public prosecutors may impose fines of up to EUR 100,000 or up to 2% of the service provider's total turnover, in particular for violations of obligations under European disclosure or preservation orders.

2. Amendments to the TKG and TDDDG

The amendment to the TKG serves to clarify the relationship between the e-Evidence addressee designation/appointment obligation and existing German national rules for telecommunications providers.

New data processing legal bases are introduced in the TDDDG (Section 13a for telecommunications service providers, Section 24a for information society services providers). These expressly permit the processing of personal data for the execution of European Production and Preservation Orders and are necessary in light of the "double door" doctrine of the German Federal Constitutional Court.

Legal uncertainties and practical impact

The biggest challenges from the perspective of service providers is the unclear scope of application of the e-Evidence Directive. The obligation to designate an establishment or representative does not apply if a service provider offers its services exclusively in the EU Member State where it is established. If a service provider can invoke this exemption, essential obligations under the e-Evidence Regulation will effectively cease to have any effect. However, it is unclear when the exemption applies: terms such as "offering services in Germany" and "establishment" are not sufficiently defined in either the e-Evidence Directive or the draft German transposition/implementing act. This leaves considerable legal uncertainty, particularly in the case of cross-border business models, such as roaming constellations or the involvement of a foreign affiliated company for the technical provision of the service. 

Against this background, a structured case-by-case analysis of the business model and the services offered is required, particularly with regard to market orientation, contract structure, intra-group service provision, and technical responsibilities.

Next Steps

After the first reading, the draft bill will be referred to the Committees (lead committee: Legal Affairs Committee; also Interior and Finance Committees). It remains to be seen whether clarifications on the scope of application will be made there, at least for Germany.

The German legislator is expected to narrowly miss the implementation deadline of 18 February 2026; however, the delay is currently expected to be only a few weeks. To date, no EU Member State has fully completed the transposition of the e-Evidence Directive.

We are happy to assist you in assessing the extent to which the e-Evidence package affects your company and what practical consequences arise from the current German draft.

Together with our international colleagues, we would also like to invite you to a webinar on 3 February 2026: Understanding the EU e-Evidence Package - Compliance and Challenges - Bird & Bird. 

If you have any questions, please do not hesitate to contact us in advance.