Taking Evidence EU
Taking of evidence in civil and commercial matters
Regulation (EU) 2020/1783 on cooperation between the courts of the EU countries in taking evidence in civil or commercial matters aims to improve the effectiveness and speed of cross-border judicial proceedings in civil and commercial cases by simplifying and streamlining procedures for taking evidence.
The regulation applies in civil and commercial matters when a court (‘requesting court’) either asks a court in another EU country (‘requested court’) to take evidence or wishes to do so directly itself.
Requests to obtain evidence are:
- used only in judicial proceedings already underway or being considered;
- submitted, in an official EU language, on a standard form containing all the necessary details;
- transmitted through a secure and reliable decentralised IT system that respects fundamental rights and freedoms;
- acknowledged to have been received within 7 days by the court;
- processed under different deadlines if the request is incomplete or the requested court does not have the necessary jurisdiction.
Court Requested
A court requested to take evidence:
- acts without delay and, at the latest, within 90 days;
- may use video- or tele-conferencing if asked to do so by the requesting court and its national law allows it;
- allows the parties and their representatives, including those of the requesting court, to attend when evidence is taken if that right exists in the country of the requesting court;
may reject the request if:- the person to be examined invokes the right to refuse to give evidence or is banned by law from doing so,
- the application does not comply with the regulation or is outside the court’s competence,
- the requesting court does not provide any additional information required or a deposit within the necessary deadlines.
A court looking to take evidence itself directly in another EU country:
contacts the country’s central body or competent authority which within 30 days accepts or rejects the request and may attach conditions and assign a particular court;
may use video-conferencing or another form of distance communication to question the person concerned.
In general, a court asked to take evidence may not claim reimbursement from the requesting court for taxes or costs, but may do so to cover:
fees for experts and interpreters, including a deposit or an advance towards the likely costs of the former;
the expense of video- or tele-conferencing.
States
EU countries:
designate a central body to:
supply information to courts,
sort out any difficulties that may arise,
forward, in exceptional cases, requests to the competent court;
provide the European Commission with practical information, such as the details of the central bodies and competent authorities;
cover the costs of installing, operating and maintaining the national IT systems used.
Commission
The Commission:
draws up and updates an electronic manual of practical information it receives from national authorities;
may adopt delegated and implementing acts on technical aspects of the legislation;
is responsible for creating, maintaining, developing and financing software that national authorities may use instead of their national IT system;
establishes, by 2 July 2023, a detailed programme to monitor the output, results and impact of the regulation;
submits an evaluation report to the European Parliament, the Council and the European Economic and Social Committee.
The regulation does not apply in Denmark.
Repeal
Regulation (EU) 2020/1783 repeals and replaces Regulation (EC) No 1206/2001 (see summary).
It applies from 1 July 2022.
Regulation (EU) 2020/1783 revises and replaces Regulation (EC) No 1206/2001 (and its subsequent amendments), notably through the use of digitalisation and modern technology to speed up processes and reduce costs and delays for individuals and businesses.
Regulation (EU) 2020/1783 of the European Parliament and of the Council of 25 November 2020 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters (taking of evidence) (recast) (OJ L 405, 2.12.2020, pp. 1-39)
Council Regulation (EC) No 1206/2001 of 28 May 2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters (OJ L 174, 27.6.2001, pp. 1-24)
Successive amendments to Regulation (EC) No 1206/2001 have been incorporated into the original text. This consolidated version is of documentary value only.
Taking of evidence in civil and commercial matters
Regulation (EC) No 1206/2001 on cooperation between the courts of the EU countries in the taking of evidence in civil or commercial matters
It aims to improve and simplify judicial cooperation among EU countries and to speed up the taking of evidence in legal proceedings in civil and commercial matters.
Scope
The regulation applies in civil and commercial matters where the court of an EU country:
requests the competent court of another EU country to obtain evidence;
requests permission to gather evidence itself in another EU country.
The request should be made to obtain evidence which is intended for use in judicial proceedings, started or considered.
Direct transmission between the courts
EU countries must draw up a list of the courts authorised to obtain evidence and indicate their territorial or special jurisdiction (such as a special court that might have powers to confiscate criminal assets). Requests are directly transmitted by the court before which the proceedings are taking place or are planned (the ‘requesting court’) to the court of the EU country gathering evidence (the ‘requested court’).
Each EU country must designate a central authority responsible for:
supplying information to the courts;
seeking solutions to any difficulties regarding transmission;
forwarding, in exceptional cases, a request to the competent court.
Form and content of the request
The request must be lodged using the form specified in this regulation. This form must contain certain details, such as:
the name and address of the parties to the proceedings,
the nature and subject matter of the case,
a description of the taking of evidence to be performed.
Requests must be drafted in the official language of the EU country of the requested court or in any other language which that country indicates it can accept.
Execution
Requests are executed in accordance with the law of the requested EU country. The request must be executed within 90 days of receipt.
The execution of a request may be refused only if:
the request does not fall within the scope of the regulation (if, for instance, it concerns criminal and not civil or commercial proceedings);
the execution of the request does not fall within the functions of the judiciary;
the request is incomplete;
a person of whom a hearing has been requested claims a right to refuse, or a prohibition, from giving evidence;
a party has not paid the deposit or advance relating to the costs of consulting an expert.
Where a request is refused, the requested court must notify the requesting court within 60 days of receipt of the request.
If permitted by the law of the country of the requesting court, representatives of the court of that country are entitled to be present when the requested court undertakes the requested act. The parties and their representatives (if any) may also be present.
The regulation does not rule out 2 or more EU countries from concluding or maintaining agreements to speed up or simplify the execution of a request.
Report
In 2007, the European Commission published a report on the application of the regulation. It concluded that certain measures still needed to be taken in order to improve its functioning. These concerned:
improving the legal professions’ level of knowledge of the regulation;
ensuring the deadline of 90 days set for executing requests is complied with;
making greater use of technologies, specifically videoconferencing.
Public consultation
In December 2017, the Commission launched a public consultation on the modernisation of judicial cooperation in civil and commercial matters in the EU. The consultation covers both Regulation (EC) No 1393/2007 on the service of documents and the regulation covered in this summary.
Application
The regulation has applied since 1 January 2004 except for:
Article 19 (concerning the creation by the Commission of a manual of implementing rules),
Article 21 (a list of agreements or arrangements in force between EU countries that they must provide to the Commission) and
Article 22 (information EU countries must provide to the Commission on rules governing the operation of their national courts and competent authorities),
all of which have applied since 1 July 2001.
Denmark is not participating in this regulation.
Documents
Council Regulation (EC) No 1206/2001 of 28 May 2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters (OJ L 174, 27.6.2001, pp. 1-24)
Successive amendments to Regulation (EC) No 1206/2001 have been incorporated in the original text. This consolidated version is of documentary value only.
Proposal for a Regulation of the European Parliament and of the Council amending Council Regulation (EC) No 1206/2001 of 28 May 2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters (COM(2018) 378 final, 31.5.2018)
Commission Staff Working Document — Impact Assessment — Accompanying the document Proposal for a Regulation of the European Parliament and of the Council amending Council Regulation (EC) No 1206/2001 of 28 May 2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters (SWD(2018) 285 final, 31.5.2018)
Regulation (EC) No 1393/2007 of the European Parliament and of the Council of 13 November 2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (service of documents), and repealing Council Regulation (EC) No 1348/2000 (OJ L 324, 10.12.2007, pp. 79-120)
Circuit Court Rules
Taking of evidence for EU Courts
: S.I. No. 302 of 2013
ORDER 23A[1]
TAKING OF EVIDENCE FOR EU COURTS
1. In this Order, unless the context otherwise requires:
“County Registrar” means, in accordance with the Regulations—
(a) the county registrar for the county or county borough in which the witness from whom evidence is to be taken resides, or carries on any profession, trade, business or other occupation;
(b) in the circumstances specified in regulation 3(3) of the Regulations, such county registrar as may be designated by the Chief Executive of the Courts Service or by such member of staff of the Courts Service as he or she may authorise in that behalf;
the “Regulation” means Council Regulation (EC) No 1206/2001 of 28 May 2001 on the cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters;
the “Regulations” means the European Communities (Evidence in Civil or Commercial Matters) Regulations 2013 (S.I. No. 126 of 2013);
“request” means a request made by a requesting court pursuant to Article 1.1(a) of the Regulation;
“requesting court” has the same meaning as in the Regulation.
2. Where a request is received from a requesting court, the County Registrar shall transmit to the requesting court an acknowledgement of receipt in Form B in the Annex to the Regulation and in accordance with Article 7 of the Regulation, which receipt shall note any non-compliance with any requirement of Article 5 or Article 6 of the Regulation.
3. The County Registrar shall, within the time specified in Article 8 of the Regulation, request the requesting court in Form C in the Annex to the Regulation and in accordance with Article 8 of the Regulation to provide any information missing from the request and, in a case in which Article 18.3 of the Regulation applies, shall request the requesting court to provide any deposit or advance required.
4. For the purpose of determining whether any deposit or advance ought to be sought in accordance with Article 18.3 of the Regulation, the County Registrar may request any expert whose evidence is sought to provide an estimate of the cost likely to be incurred in the preparation and giving of such evidence or may make such other inquiries as to likely costs or expenses as the County Registrar considers appropriate. The amount fixed by way of deposit or advance for the purposes of Article 18.3 of the Regulation shall be in the discretion of the County Registrar and the County Registrar may fix and request the payment of any further deposit or advance in connection with the same request from time to time.
5. Where the execution of the request falls to be refused on one of the grounds set out in Article 14.2 of the Regulation, the County Registrar shall, within the time specified in Article 14.4 of the Regulation, so notify the requesting court in Form H in the Annex to the Regulation and in accordance with Article 14.4 of the Regulation.
6. For the purpose of executing any request, the County Registrar may, if he or she is satisfied that the request is not a request referred to in Article 14.2 of the Regulation, and without any application in that regard by or on behalf of the requesting court (other than in any written form(s) submitted by the requesting court in accordance with the Regulation):
(a) subject to rule 7, make any order for the attendance before him or her of any person or persons (hereafter in this Order referred to as a “witness”) at a place (including a place outside the County) and time specified in such order for the purpose of the examination of such witness upon oath in accordance with the practice of the Court before the County Registrar, and may issue a witness summons addressed to any witness for the purpose of securing his or her attendance;
(b) communicate or correspond with any witness and any requesting court in such form as the County Registrar shall see fit for the purpose of fixing the time and place referred to in paragraph (a);
(c) make any order, where relevant, for the production by any person or persons at a place (including a place outside the County) and time specified in such order before the County Registrar, or before some other officer of the Court or other person nominated by the County Registrar for that purpose, of any document or object referred to in the order;
(d) make any order authorising the direct transmission of the evidence given by any witness on the taking of the evidence of such witness to the requesting court by videoconference, teleconference or other means specified in such order, and may make such arrangements as seem appropriate to facilitate such transmission;
(e) make any order authorising the participation in the taking of the evidence of the parties to the proceedings pending before the requesting court and/or the legal representatives of such parties and/or any representatives of the requesting court identified in any such order, on such terms as shall seem appropriate;
(f) where the parties to the proceedings pending before the requesting court and/or their legal representatives will not be present at the taking of the evidence, request the requesting court to provide copies of any pleadings or other relevant documents submitted to it in connection with the proceedings so as to inform the person regulating the taking of the evidence of the questions or matters at issue between the parties;
(g) adjourn the taking of the evidence from time to time and/or from place to place as shall seem appropriate;
(h) make any order as seems appropriate in relation to the preparation of a record (within the meaning of Order 67A) of the evidence given by any witness in any such examination, and may make such arrangements as seem appropriate to facilitate the preparation of such a record;
(i) require the requesting court to reimburse the fees paid to any expert(s) or interpreter(s) and/or any costs occasioned by the application of Article 10(3) and/or 10(4) of the Regulation, and/or
(j) from time to time submit completed to the requesting court such forms in the Annex to the Regulation as are appropriate to the circumstances of the request.
7. Where the requesting court calls for the request to be executed in accordance with a special procedure under Article 10(3) of the Regulation, and the County Registrar is required to comply with that request by virtue of Article 10(3) of the Regulation, the County Registrar may include in any order for the attendance before him or her of any witness any special directions authorising the examination of such witness in accordance with such procedure.
8. (1) Any order of the County Registrar made or witness summons issued under this rule shall be in writing and shall be served upon any and every witness to whom such order relates not later than seven days before the time fixed for the taking of the evidence in the manner prescribed by section 7 of the Courts Act 1964, provided that the County Registrar may direct that any order be served upon any witness to whom such order relates personally or by some other means directed by the County Registrar in substitution for, or in addition to, such service.
(2) On the service of any order made or witness summons issued in accordance with this Order, there shall be given or offered to each expert witness served such sum out of any deposit or advance as the County Registrar specifies by way of advance against the cost (if any) or expenses likely to be incurred by the witness in preparing his evidence, attending and giving evidence.
9. (1) Save where otherwise provided in any special directions, and where the parties or their legal representatives are present at the taking of the evidence, the witness shall be examined by the party on whose application the request for the evidence of the witness concerned was issued, cross-examined by the other party or parties, and re-examined by the party on whose application the request for the evidence of the witness concerned was issued.
(2) The County Registrar may put any question to the witness as to the meaning of any answer, or as to any matter arising in the course of the examination, but the County Registrar shall not have power to decide upon the materiality or relevance of any question.
10. (1) Where any witness at a taking of evidence claims a right not to give any evidence or, being sworn, claims a right not to answer any question or to be prohibited from giving any evidence or answering any question, the procedure in this rule shall apply.
(2) Where the witness claims that he or she has a right under the law of the requesting state not to give any evidence or, being sworn, claims a right not to answer any question or to be prohibited from giving any evidence or answering any question, the County Registrar may request the requesting court to confirm the existence of the right claimed under its law and/or direct that the claim be recorded in the record of the taking of the evidence.
(3) The County Registrar may seek the direction of the Court on any issue arising on the taking of the evidence and the Court may, for that purpose, direct that any person or persons be put on notice by the County Registrar of any hearing before the Court.
11. Unless otherwise provided in any order of the County Registrar, the County Registrar shall, on the completion of the taking of the evidence, invite the witness to authenticate any record of the taking of the evidence in such manner as the County Registrar shall direct and the County Registrar shall authenticate such record and forward the record to the requesting court together with the confirmation in Form H in the Annex to the Regulation and in accordance with Article 16 of the Regulation.
12. Where any person, having been duly ordered or summoned to attend, fails to attend for the purpose of the taking of evidence or for the purpose of producing any document or having attended refuses without lawful excuse to be sworn or to make an affirmation or refuses without lawful excuse to produce any document or does any act or fails to do any act which if done in a competent court for the purpose of the Regulation would be deemed to be contempt of court the County Registrar shall:
(a) certify the circumstances to the Court;
(b) cause the request to be listed before the Judge at any venue on the Circuit where the County Registrar is executing such request;
and the Court, if satisfied that:
(i) such person has been duly ordered or summoned to attend,
(ii) where relevant, that the person’s refusal to be sworn, to make an affirmation or to produce any document was without lawful excuse,
(iii) where relevant, the person’s act or failure if done in a competent court for the purpose of the Regulation would be deemed to be contempt of court,
may attach him for contempt, and deal with him in the manner provided in Order 24, rules 6 and 7.
[1] Order 23S inserted by SI 302 of 2013, effective 26 August 2013.