(1)

In the interests of the proper functioning of the internal market and the development of a European area of civil justice governed by the principle of mutual trust and mutual recognition of judgments , it is necessary to further improve and expedite cooperation between courts in the Member States in relation to the taking of evidence. [Am. 1]

(2)

Council Regulation (EC) No 1206/2001 (3) lays down rules on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters.

(2a)

For the purposes of this Regulation, the term ‘court’ should be given a broad meaning so as to cover not only courts in the strict sense of the word, that exercise judicial functions, but also other bodies or authorities which are competent under national law to take evidence in accordance with this Regulation, such as enforcement authorities or notaries in certain Member States and in specific situations. [Am. 2]

(2b)

It is essential that effective means of obtaining, preserving and presenting evidence are available, and that due regard is given to the rights of defence and the need for protection of confidential information. In this context, it is important to encourage the use of modern technology. [Am. 3]

(3)

In order to effectively ensure direct and speedy transmission of requests and communications, all appropriate means of modern communication technology should be used , and in that regard the constant development of such technology should be taken into account . Therefore, as a rule, all communication and exchanges of documents should be carried out through a decentralised IT system composed of national IT systems. [Am. 4]

(3a)

The decentralised IT system should be based on the e-CODEX system and should be managed by eu-LISA. Adequate resources should be made available to eu-LISA so that such a system can be introduced and kept operational, as well as to provide technical support in the event of problems in the operation of the system. The Commission should submit, as soon as possible, and in any event before the end of 2019, a proposal for a Regulation on cross-border communication in judicial proceedings (e-CODEX). [Am. 5]

(4)

In order to ensure mutual recognition of digital evidence such evidence taken in a Member State in accordance with its law should not be denied recognition as evidence in other Member States only because of its digital nature. That principle should be without prejudice to determining, in accordance with national law, the level of quality and the value of evidence, regardless of its digital or non-digital nature. [Am. 6]

(5)

Regulation (EC) No 1206/2001 should be without prejudice to the possibility for authorities to exchange information under systems established by other Union instruments, such as Council Regulation (EC) No 2201/2003 (4) or Council Regulation (EC) No 4/2009 (5), even where that information has evidentiary value, thus leaving the choice of the most suitable method to the requesting authority.

(5a)

The procedures for taking, preserving and presenting evidence should ensure that the procedural rights of the parties, as well as the protection, integrity and confidentiality of personal data and privacy, are protected in accordance with Union law. [Am. 7]

(6)

Modern communications technology, in particular videoconferencing which is an important and direct means to simplify and accelerate the taking of evidence, is currently not used to its full potential. Where evidence is to be taken by hearing a person domiciled in another Member State as witness, party or expert, the court should take that evidence directly via videoconference, if or via any other appropriate distance communication technology available to the respective courts, where it deems the use of such technology appropriate unless, on account of the specific circumstances of the case , the use of such technology is deemed inappropriate for the fair conduct of the proceedings. The rules on the use of such means of communication should be technology-neutral and cater for future communication solutions. Where required by the national law of the Member State concerned, the use of such technology should be subject to the consent of the person to be heard . [Am. 8]

(7)

In order to facilitate the taking of evidence by diplomatic officers staff or consular agents, such persons may, in the territory of another Member State and within the area where they exercise their functions are accredited , take evidence at the premises of their diplomatic mission or consulate without the need for a prior request by hearing nationals of the Member State which they represent without compulsion in the context of for proceedings pending in the courts of the Member State which they represent , provided that the person to be heard voluntarily cooperates in the taking of evidence . [Am. 9]

(7a)

It is important to ensure that this Regulation is applied in compliance with Union data protection law and that it respects the protection of privacy as enshrined in the Charter of Fundamental Rights of the European Union. It is also important to ensure that any processing of the personal data of natural persons under this Regulation is undertaken in accordance with Regulation (EU) 2016/679 of the European Parliament and of the Council  (6) and Directive 2002/58/EC of the European Parliament and of the Council  (7) . Personal data under this Regulation should be processed only for the specific purposes set out in this Regulation. [Am. 10]

(8)

Since the objectives of this Regulation cannot be sufficiently achieved by the Member States and can rather, by reason of the creation of a  simplified legal framework ensuring the direct, effective and speedy transmission of requests and communications concerning the performance of taking of evidence, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on the European Union. In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve that objective. [Am. 11]

(8a)

This Regulation seeks to improve the efficacy and speed of judicial proceedings by simplifying and streamlining the mechanisms for cooperation in the taking of evidence in cross-border proceedings, while at the same time helping to reduce delays and costs for individuals and businesses. In addition, greater legal certainty, coupled with simpler, streamlined and digitalised procedures can encourage individuals and businesses to engage in cross-border transactions, thereby boosting trade within the Union and hence the functioning of the internal market. [Am. 12]

(9)

In accordance with Article 3 and Article 4a(1) of protocol No 21 on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, annexed to the Treaty on European Union and the Treaty on the Functioning of the European Union, the [United Kingdom] [and] [Ireland] [have/has notified their/its wish to take part in the adoption and application of the present Regulation] [are/is not taking part in the adoption of this Regulation and is not bound by it or subject to its application].

(10)

In accordance with Articles 1 and 2 of Protocol No 22 on the position of Denmark, annexed to the Treaty on European Union and the Treaty on the Functioning of the European Union, Denmark is not taking part in the adoption of this Regulation and is not bound by it or subject to its application.

(11)

In order to define the detailed arrangements for the functioning of the decentralised IT system and in order to establish the minimum technical standards and requirements for the use of videoconference, the power to adopt acts in accordance with Article 290 of the Treaty on the Functioning of the European Union should be delegated to the Commission. Such delegated acts should guarantee an effective, reliable and smooth transmission of the relevant information through the decentralised IT system, and should ensure that the videoconferencing session guarantees high quality communication and real time interaction. Furthermore, in order to update the standard forms in the Annexes or to make technical changes to those forms, the power to adopt acts in accordance with Article 290 of the Treaty on the Functioning of the European Union should be delegated to the Commission in respect of amendments to the Annexes. It is of particular importance that the Commission carry out appropriate consultations during its preparatory work, including at expert level, and that those consultations be conducted in accordance with the principles laid down in the Interinstitutional Agreement of 13 April 2016 on Better Law-Making (8). In particular, to ensure equal participation in the preparation of delegated acts, the European Parliament and the Council receive all documents at the same time as Member States' experts, and their experts systematically have access to meetings of Commission expert groups dealing with the preparation of delegated acts. [Am. 13]

(12)

In accordance with paragraphs 22 and 23 of the Interinstitutional Agreement of 13 April 2016 on Better Law-Making, the Commission should evaluate this Regulation on the basis of information collected through specific monitoring arrangements in order to assess the actual effects of the Regulation and the need for any further action.

(13)

Regulation (EC) No 1206/2001 should therefore be amended accordingly,