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)