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Taking of evidence in civil and commercial matters

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Taking of evidence in civil and commercial matters

The aim of this Regulation is to improve, simplify and accelerate cooperation between Member States as regards the taking of evidence in legal proceedings in civil and commercial matters.

ACT

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.

SUMMARY

The Regulation makes it easier to take evidence in another Member State. It applies in civil and commercial matters where the court of a Member State:

  • requests the competent court of another Member State to obtain evidence;
  • requests permission to gather evidence themselves in another Member State.

The request should be made to obtain evidence which is intended for use in judicial proceedings, commenced or contemplated.

Denmark is not participating in this Regulation.

Direct transmission between the courts

Member States must draw up a list of the courts authorised to obtain evidence and indicate their territorial and/or special jurisdiction. 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 Member State gathering evidence (the requested court).

Each Member State is to 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, and 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, etc.

The Regulation lays down that requests must be drafted in the official language of the Member State of the requested court or in any other language that the requested Member State has indicated it can accept.

Execution

Requests are executed in accordance with the law of the requested Member State. The request must be executed within ninety 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;
  • the deposit or advance relating to the costs of consulting an expert has not been made.

Where a request is refused, the requested court must notify the requesting court within sixty days of receipt of the request.

If permitted by the law of the Member State of the requesting court, representatives of the requesting court have the right to be present when the requested court undertakes the act requested. The parties and, if any, their representatives may also be present.

The Regulation does not preclude two or several Member States from concluding or maintaining agreements aimed at expediting or simplifying the execution of a request for the performance of judicial acts.

REFERENCES

Act

Entry into force

Deadline for transposition in the Member States

Official Journal

Regulation (EC) No 1206/2001

1.7.2001

-

OJ L 174, 27.6.2001

RELATED ACTS

Report from the Commission to the Council, the European Parliament and the European Economic and Social Committee of 5 December 2007 on the application of the Council Regulation (EC) 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(2007) 769 final - Not published in the Official Journal].

According to the Commission, the two main objectives of the Regulation (to simplify cooperation among the Member States and speed up the taking of evidence) have been satisfactorily achieved. However, certain measures still need to be taken in order to improve the functioning of the Regulation, in particular to:

  • improve the level of knowledge of the Regulation among the legal professions;
  • take the measures required so that the deadline of 90 days set for executing requests is complied with;
  • exploit new technologies more, specifically videoconferencing.

Proposal for a Regulation of the European Parliament and of the Council adapting to Article 290 of the Treaty on the Functioning of the European Union a number of legal acts in the area of Justice providing for the use of the regulatory procedure with scrutiny [ COM(2013) 452 final - Not published in the Official Journal].

This Proposal aims to allow the Commission to adopt delegated acts in the context of five Regulations in the area of justice, in which Regulation (EC) No 1206/2001 replaces the currently applicable Regulation with control procedure.

Last updated: 01.04.2014

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