Taking of Evidence Regulation
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
The European Parliament and the Council of the European
Union,
Having regard to the Treaty establishing the European Community, and
in particular Article 61(c) and Article 67(1) thereof,
Having regard to the initiative of the Federal Republic of Germany,
Having regard to the opinion of the European Parliament,
Having regard to the opinion of the Economic and Social Committee,
Whereas:
(1) The European Union has set itself the objective of maintaining and
developing the European Union as an area of freedom, security and justice
in which the free movement of persons is ensured. For the gradual establishment
of such an area, the Community is to adopt, among others, the measures
relating to judicial cooperation in civil matters needed for the proper
functioning of the internal market.
(2) For the purpose of the proper functioning of the internal market,
cooperation between courts in the taking of evidence should be improved,
and in particular simplified and accelerated.
(3) At its meeting in Tampere on 15 and 16 October 1999, the European
Council recalled that new procedural legislation in cross-border cases,
in particular on the taking of evidence, should be prepared.
(4) This area falls within the scope of Article 65 of the Treaty.
(5) The objectives of the proposed action, namely the improvement of cooperation
between the courts on the taking of evidence in civil or commercial matters,
cannot be sufficiently achieved by the Member States and can therefore
be better achieved at Community level. The Community may adopt measures
in accordance with the principle of subsidiarity as set out in Article
5 of the Treaty. In accordance with the principle of proportionality,
as set out in that Article, this Regulation does not go beyond what is
necessary to achieve those objectives.
(6) To date, there is no binding instrument between all the Member States
concerning the taking of evidence. The Hague Convention of 18 March 1970
on the taking of evidence abroad in civil or commercial matters applies
between only 11 Member States of the European Union.
(7) As it is often essential for a decision in a civil or commercial matter
pending before a court in a Member State to take evidence in another Member
State, the Community's activity cannot be limited to the field of transmission
of judicial and extrajudicial documents in civil or commercial matters
which falls within the scope of Council Regulation (EC) No 1348/2000 of
29 May 2000 on the serving in the Member States of judicial and extrajudicial
documents in civil or commercial matters ( 4 ). It is therefore necessary
to continue the improvement of cooperation between courts of Member States
in the field of taking of evidence.
(8) The efficiency of judicial procedures in civil or commercial matters
requires that the transmission and execution of requests for the performance
of taking of evidence is to be made directly and by the most rapid means
possible between Member States' courts.
(9) Speed in transmission of requests for the performance of taking of
evidence warrants the use of all appropriate means, provided that certain
conditions as to the legibility and reliability of the document received
are observed. So as to ensure the utmost clarity and legal certainty the
request for the performance of taking of evidence must be transmitted
on a form to be completed in the language of the Member State of the requested
court or in another language accepted by that State. For the same reasons,
forms should also be used as far as possible for further communication
between the relevant courts.
(10) A request for the performance of the taking of evidence should be
executed expeditiously. If it is not possible for the request to be executed
within 90 days of receipt by the requested court, the latter should inform
the requesting court accordingly, stating the reasons which prevent the
request from being executed swiftly.
(11) To secure the effectiveness of this Regulation, the possibility of
refusing to execute the request for the performance of taking of evidence
should be confined to strictly limited exceptional situations.
(12) The requested court should execute the request in accordance with
the law of its Member State.
(13) The parties and, if any, their representatives, should be able to
be present at the performance of the taking of evidence, if that is provided
for by the law of the Member State of the requesting court, in order to
be able to follow the proceedings in a comparable way as if evidence were
taken in the Member State of the requesting court. They should also have
the right to request to participate in order to have a more active role
in the performance of the taking of evidence. However, the conditions
under which they may participate should be determined by the requested
court in accordance with the law of its Member State.
(14) The representatives of the requesting court should be able to be
present at the performance of the taking of evidence, if that is compatible
with the law of the Member State of the requesting court, in order to
have an improved possibility of evaluation of evidence. They should also
have the right to request to participate, under the conditions laid down
by the requested court in accordance with the law of its Member State,
in order to have a more active role in the performance of the taking of
evidence.
(15) In order to facilitate the taking of evidence it should be possible
for a court in a Member State, in accordance with the law of its Member
State, to take evidence directly in another Member State, if accepted
by the latter, and under the conditions determined by the central body
or competent authority of the requested Member State.
(16) The execution of the request, according to Article 10, should not
give rise to a claim for any reimbursement of taxes or costs. Nevertheless,
if the requested court requires reimbursement, the fees paid to experts
and interpreters, as well as the costs occasioned by the application of
Article 10(3) and (4), should not be borne by that court. In such a case,
the requesting court is to take the necessary measures to ensure reimbursement
without delay. Where the opinion of an expert is required, the requested
court may, before executing the request, ask the requesting court for
an adequate deposit or advance towards the costs.
(17) This Regulation should prevail over the provisions applying to its
field of application, contained in international conventions concluded
by the Member States. Member States should be free to adopt agreements
or arrangements to further facilitate cooperation in the taking of evidence.
(18) The information transmitted pursuant to this Regulation should enjoy
protection. Since Directive 95/46/EC of the European Parliament and of
the Council of 24 October 1995 on the protection of individuals with regard
to the processing of personal data and on the free movement of such data
( 5 ), and Directive 97/66/EC of the European Parliament and of the Council
of 15 December 1997 concerning the processing of personal data and the
protection of privacy in the telecommunications sector ( 6 ), are applicable,
there is no need for specific provisions on data protection in this Regulation.
(19) The measures necessary for the implementation of this Regulation
should be adopted in accordance with Council Decision 1999/468/EC of 28
June 1999 ( 7 ) laying down the procedures for the exercise of implementing
powers conferred on the Commission.
(20) For the proper functioning of this Regulation, the Commission should
review its application and propose such amendments as may appear necessary.
(21) The United Kingdom and Ireland, in accordance with Article 3 of the
Protocol on the position of the United Kingdom and Ireland annexed to
the Treaty on the European Union and to the Treaty establishing the European
Community, have given notice of their wish to take part in the adoption
and application of this Regulation.
(22) Denmark, in accordance with Articles 1 and 2 of the Protocol on the
position of Denmark annexed to the Treaty on European Union and to the
Treaty establishing the European Community, is not participating in the
adoption of this Regulation, and is therefore not bound by it nor subject
to its application,
HAS ADOPTED THIS REGULATION:
Chapter I General provisions
Article 1 Scope
- 1. This Regulation shall apply in civil or
commercial matters where the court of a Member State, in accordance with
the provisions of the law of that State, requests:
(a) the competent court of another Member State
to take evidence; or
(b) to take evidence directly in another Member
State.
- 2. A request shall not be made to obtain evidence which is not intended
for use in judicial proceedings, commenced or contemplated.
- 3. In this Regulation, the term ‘Member State’ shall mean
Member States with the exception of Denmark.
Article 2 Direct transmission between the courts
- 1. Requests pursuant to Article 1(1)(a), hereinafter referred to as
‘requests’, shall be transmitted by the court before which
the proceedings are commenced or contemplated, hereinafter referred to
as the ‘requesting court’, directly to the competent court
of another Member State, hereinafter referred to as the ‘requested
court’, for the performance of the taking of evidence.
- 2. Each Member State shall draw up a list of the courts competent for
the performance of taking of evidence according to this Regulation. The
list shall also indicate the territorial and, where appropriate, the special
jurisdiction of those courts.
Article 3 Central body
- 1. Each Member State shall designate a central body responsible for:
(a) supplying information to the courts;
(b) seeking solutions to any difficulties which
may arise in respect of a request;
(c) forwarding, in exceptional cases, at the
request of a requesting court, a request to the competent court.
- 2. A federal State, a State in which several legal systems apply or
a State with autonomous territorial entities shall be free to designate
more than one central body.
- 3. Each Member State shall also designate the central body referred
to in paragraph 1 or one or several competent authority(ies) to be responsible
for taking decisions on requests pursuant to Article 17.
Chapter II Transmission and Execution
of requests
Section 1 Transmission of the request
Article 4 Form and content of the request
- 1. The request shall be made using form A or, where appropriate, form
I in the Annex. It shall contain the following details:
(a) the requesting and, where appropriate,
the requested court;
(b) the names and addresses of the parties
to the proceedings and their representatives, if any;
(c) the nature and subject matter of the case
and a brief statement of the facts;
(d) a description of the taking of evidence
to be performed;
(e) where the request is for the examination
of a person:
— the name(s) and address(es) of the person(s) to be examined,
— the questions to be put to the person(s) to be examined or a statement
of the facts about which he is (they are) to be examined,
— where appropriate, a reference to a right to refuse to testify
under the law of the Member State of the requesting court,
— any requirement that the examination is to be carried out under
oath or affirmation in lieu thereof, and any special form to be used,
— where appropriate, any other information that the requesting court
deems necessary;
(f) where the request is for any other form
of taking of evidence, the documents or other objects to be inspected;
(g) where appropriate, any request pursuant
to Article 10(3) and (4), and Articles 11 and 12 and any information necessary
for the application thereof.
- 2. The request and all documents accompanying the request shall be exempted
from authentication or any equivalent formality.
- 3. Documents which the requesting court deems it necessary to enclose
for the execution of the request shall be accompanied by a translation
into the language in which the request was written.
Article 5 Language
The request and communications pursuant to this Regulation shall be drawn
up in the official language of the requested Member State or, if there
are several official languages in that Member State, in the official language
or one of the official languages of the place where the requested taking
of evidence is to be performed, or in another language which the requested
Member State has indicated it can accept. Each Member State shall indicate
the official language or languages of the institutions of the European
Community other than its own which is or are acceptable to it for completion
of the forms.
Article 6 Transmission of requests and other communications
Requests and communications pursuant to this Regulation shall be transmitted
by the swiftest possible means, which the requested Member State has indicated
it can accept. The transmission may be carried out by any appropriate
means, provided that the document received accurately reflects the content
of the document forwarded and that all information in it is legible.
Section 2 Receipt of request
Article 7 Receipt of request
- 1. Within seven days of receipt of the request, the requested competent
court shall send an acknowledgement of receipt to the requesting court
using form B in the Annex. Where the request does not comply with the
conditions laid down in Articles 5 and 6, the requested court shall enter
a note to that effect in the acknowledgement of receipt.
- 2. Where the execution of a request made using form A in the Annex,
which complies with the conditions laid down in Article 5, does not fall
within the jurisdiction of the court to which it was transmitted, the
latter shall forward the request to the competent court of its Member
State and shall inform the requesting court thereof using form A in the
Annex.
Article 8 Incomplete request
- 1. If a request cannot be executed because it does not contain all of
the necessary information pursuant to Article 4, the requested court shall
inform the requesting court thereof without delay and, at the latest,
within 30 days of receipt of the request using form C in the Annex, and
shall request it to send the missing information, which should be indicated
as precisely as possible.
- 2. If a request cannot be executed because a deposit or advance is necessary
in accordance with Article 18(3), the requested court shall inform the
requesting court thereof without delay and, at the latest, within 30 days
of receipt of the request using form C in the Annex and inform the requesting
court how the deposit or advance should be made. The requested Court shall
acknowledge receipt of the deposit or advance without delay, at the latest
within 10 days of receipt of the deposit or the advance using form D.
Article 9 Completion of the request
- 1. If the requested court has noted on the acknowledgement of receipt
pursuant to Article 7(1) that the request does not comply with the conditions
laid down in Articles 5 and 6 or has informed the requesting court pursuant
to Article 8 that the request cannot be executed because it does not contain
all of the necessary information pursuant to Article 4, the time limit
pursuant to Article 10 shall begin to run when the requested court received
the request duly completed.
- 2. Where the requested court has asked for a deposit or advance in accordance
with Article 18(3), this time limit shall begin to run when the deposit
or the advance is made.
Section 3 Taking of evidence by
the requested court
Article 10 General provisions on the execution of
the request
- 1. The requested court shall execute the request without delay and,
at the latest, within 90 days of receipt of the request.
- 2. The requested court shall execute the request in accordance with
the law of its Member State.
- 3. The requesting court may call for the request to be executed in accordance
with a special procedure provided for by the law of its Member State,
using form A in the Annex. The requested court shall comply with such
a requirement unless this procedure is incompatible with the law of the
Member State of the requested court or by reason of major practical difficulties.
If the requested court does not comply with the requirement for one of
these reasons it shall inform the requesting court using form E in the
Annex.
- 4. The requesting court may ask the requested court to use communications
technology at the performance of the taking of evidence, in particular
by using videoconference and teleconference.
The requested court shall comply with such a requirement unless this is
incompatible with the law of the Member State of the requested court or
by reason of major practical difficulties.
If the requested court does not comply with the requirement for one of
these reasons, it shall inform the requesting court, using form E in the
Annex.
If there is no access to the technical means referred to above in the
requesting or in the requested court, such means may be made available
by the courts by mutual agreement.
Article 11 Performance with the presence and participation
of the parties
- 1. If it is provided for by the law of the Member State of the requesting
court, the parties and, if any, their representatives, have the right
to be present at the performance of the taking of evidence by the requested
court.
- 2. The requesting court shall, in its request, inform the requested
court that the parties and, if any, their representatives, will be present
and, where appropriate, that their participation is requested, using form
A in the Annex. This information may also be given at any other appropriate
time.
- 3. If the participation of the parties and, if any, their representatives,
is requested at the performance of the taking of evidence, the requested
court shall determine, in accordance with Article 10, the conditions under
which they may participate.
- 4. The requested court shall notify the parties and, if any, their representatives,
of the time when, the place where, the proceedings will take place, and,
where appropriate, the conditions under which they may participate, using
form F in the Annex.
- 5. Paragraphs 1 to 4 shall not affect the possibility for the requested
court of asking the parties and, if any their representatives, to be present
at or to participate in the performance of the taking of evidence if that
possibility is provided for by the law of its Member State.
Article 12 Performance with the presence and participation
of representatives of the requesting court
- 1. If it is compatible with the law of the Member State of the requesting
court, representatives of the requesting court have the right to be present
in the performance of the taking of evidence by the requested court.
- 2. For the purpose of this Article, the term ‘representative’
shall include members of the judicial personnel designated by the requesting
court, in accordance with the law of its Member State. The requesting
court may also designate, in accordance with the law of its Member State,
any other person, such as an expert.
- 3. The requesting court shall, in its request, inform the requested
court that its representatives will be present and, where appropriate,
that their participation is requested, using form A in the Annex. This
information may also be given at any other appropriate time.
- 4. If the participation of the representatives of the requesting court
is requested in the performance of the taking of evidence, the requested
court shall determine, in accordance with Article 10, the conditions under
which they may participate.
- 5. The requested court shall notify the requesting court, of the time
when, and the place where, the proceedings will take place, and, where
appropriate, the conditions under which the representatives may participate,
using form F in the Annex.
Article 13 Coercive measures
Where necessary, in executing a request the requested court shall apply
the appropriate coercive measures in the instances and to the extent as
are provided for by the law of the Member State of the requested court
for the execution of a request made for the same purpose by its national
authorities or one of the parties concerned.
Article 14 Refusal to execute
- 1. A request for the hearing of a person shall not be executed when
the person concerned claims the right to refuse to give evidence or to
be prohibited from giving evidence,
(a) under the law of the Member State of the
requested court; or
(b) under the law of the Member State of the
requesting court, and such right has been specified in the request, or,
if need be, at the instance of the requested court, has been confirmed
by the requesting court.
- 2. In addition to the grounds referred to in paragraph 1, the execution
of a request may be refused only if:
(a) the request does not fall within the scope
of this Regulation as set out in Article 1; or
(b) the execution of the request under the
law of the Member State of the requested court does not fall within the
functions of the judiciary; or
(c) the requesting court does not comply with
the request of the requested court to complete the request pursuant to
Article 8 within 30 days after the requested court asked it to do so;
or
(d) a deposit or advance asked for in accordance
with Article 18(3) is not made within 60 days after the requested court
asked for such a deposit or advance.
- 3. Execution may not be refused by the requested court solely on the
ground that under the law of its Member State a court of that Member State
has exclusive jurisdiction over the subject matter of the action or that
the law of that Member State would not admit the right of action on it.
- 4. If execution of the request is refused on one of the grounds referred
to in paragraph 2, the requested court shall notify the requesting court
thereof within 60 days of receipt of the request by the requested court
using form H in the Annex.
Article 15 Notification of delay
If the requested court is not in a position to execute the request within
90 days of receipt, it shall inform the requesting court thereof, using
form G in the Annex. When it does so, the grounds for the delay shall
be given as well as the estimated time that the requested court expects
it will need to execute the request.
Article 16 Procedure after execution of the request
The requested court shall send without delay to the requesting court the
documents establishing the execution of the request and, where appropriate,
return the documents received from the requesting court. The documents
shall be accompanied by a confirmation of execution using form H in the
Annex.
Section 4 Direct taking of evidence
by the requesting court
Article 17 Taking of evidence by the requesting court
- 1. Where a court requests to take evidence directly in another Member
State, it shall submit a request to the central body or the competent
authority referred to in Article 3(3) in that State, using form I in the
Annex.
- 2. Direct taking of evidence may only take place if it can be performed
on a voluntary basis without the need for coercive measures.
Where the direct taking of evidence implies that a person shall be heard,
the requesting court shall inform that person that the performance shall
take place on a voluntary basis.
- 3. The taking of evidence shall be performed by a member of the judicial
personnel or by any other person such as an expert, who will be designated,
in accordance with the law of the Member State of the requesting court.
- 4. Within 30 days of receiving the request, the central body or the
competent authority of the requested Member State shall inform the requesting
court if the request is accepted and, if necessary, under what conditions
according to the law of its Member State such performance is to be carried
out, using form J.
In particular, the central body or the competent authority may assign
a court of its Member State to take part in the performance of the taking
of evidence in order to ensure the proper application of this Article
and the conditions that have been set out.
The central body or the competent authority shall encourage the use of
communications technology, such as videoconferences and teleconferences.
- 5. The central body or the competent authority may refuse direct taking
of evidence only if:
(a) the request does not fall within the scope
of this Regulation as set out in Article 1;
(b) the request does not contain all of the
necessary information pursuant to Article 4; or
(c) the direct taking of evidence requested
is contrary to fundamental principles of law in its Member State.
- 6. Without prejudice to the conditions laid
down in accordance with paragraph 4, the requesting court shall execute
the request in accordance with the law of its Member State.
Section 5 Costs
Article 18 Costs
- 1. The execution of the request, in accordance
with Article 10, shall not give rise to a claim for any reimbursement
of taxes or costs.
- 2. Nevertheless, if the requested court so
requires, the requesting court shall ensure the reimbursement, without
delay, of:
— the fees paid to experts and interpreters, and
— the costs occasioned by the application of Article 10(3) and(4).
The duty for the parties to bear these fees or costs shall be governed
by the law of the Member State of the requesting court.
- 3. Where the opinion of an expert is required,
the requested court may, before executing the request, ask the requesting
court for an adequate deposit or advance towards the requested costs.
In all other cases, a deposit or advance shall not be a condition for
the execution of a request.
The deposit or advance shall be made by the parties if that is provided
for by the law of the Member State of the requesting court.
Chapter III Final provisions
Article 19 Implementing rules
- 1. The Commission shall draw up and regularly update a manual, which
shall also be available electronically, containing the information provided
by the Member States in accordance with Article 22 and the agreements
or arrangements in force, according to Article 21.
- 2. The updating or making of technical amendments to the standard forms
set out in the Annex shall be carried out by the Commission. Those measures,
designed to amend non-essential elements of this Regulation, shall be
adopted in accordance with the regulatory procedure with scrutiny referred
to in Article 20(2).
Article 20 Committee
- 1. The Commission shall be assisted by a committee.
- 2. Where reference is made to this paragraph, Article 5a(1) to (4) and
Article 7 of Decision 1999/468/EC shall apply, having regard to the provisions
of Article 8 thereof.
Article 21 Relationship with existing or future agreements
or arrangements between Member States
- 1. This Regulation shall, in relation to matters to which it applies,
prevail over other provisions contained in bilateral or multilateral agreements
or arrangements concluded by the Member States and in particular the Hague
Convention of 1 March 1954 on Civil Procedure and the Hague Convention
of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial
Matters, in relations between the Member States party thereto.
- 2. This Regulation shall not preclude Member States from maintaining
or concluding agreements or arrangements between two or more of them to
further facilitate the taking of evidence, provided that they are compatible
with this Regulation.
- 3. Member States shall send to the Commission:
(a) by 1 July 2003, a copy of the agreements
or arrangements maintained between the Member States referred to in paragraph
2;
(b) a copy of the agreements or arrangements
concluded between the Member States referred to in paragraph 2 as well
as drafts of such agreements or arrangements which they intend to adopt;
and
(c) any denunciation of, or amendments to,
these agreements or arrangements.
Article 22 Communication
By 1 July 2003 each Member State shall communicate to the Commission the
following:
(a) the list pursuant to Article 2(2) indicating
the territorial and, where appropriate, the special jurisdiction of the
courts;
(b) the names and addresses of the central
bodies and competent authorities pursuant to Article 3, indicating their
territorial jurisdiction;
(c) the technical means for the receipt of
requests available to the courts on the list pursuant to Article 2(2);
(d) the languages accepted for the requests
as referred to in Article 5.
Member States shall inform the Commission of any subsequent changes to
this information.
Article 23 Review
No later than 1 January 2007, and every five years thereafter, the Commission
shall present to the European Parliament, the Council and the Economic
and Social Committee a report on the application of this Regulation, paying
special attention to the practical application of Article 3(1)(c) and
3, and Articles 17 and 18.
Article 24 Entry into force
- 1. This Regulation shall enter into force on 1 July 2001.
- 2. This Regulation shall apply from 1 January 2004, except for Articles
19, 21 and 22, which shall apply from 1 July 2001.
This Regulation shall be binding in its entirety and directly applicable
in the Member States in accordance with the Treaty establishing the European
Community.
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