Taking of evidence in civil and commercial matters (until 2022)

KEY POINTS

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.

Repeal

Regulation (EC) No 1206/2001 is repealed and replaced by Regulation (EU) 2020/1783 as of 1 July 2022.