8.10.2016

1

Council Regulation (EC) No 1206/2001 on cooperation

between the courts of the member states in the taking of

evidence in civil or commercial matters – An overview

Aleš Galič

Professor of Civil Procedure and International Private Law

University of Ljubljana, Faculty of Law

Slovenia

Judicial Training on Service of documents & taking evidence abroad (CI/2016/06); EJTN Civil Law Project; 17–18

November 2016; Academy of European Law (ERA), Trier

The 1970 Hague Convention• Court in country A → central body of the

country B (as a rule: Ministry of justice) →

Court in country B

• Diplomatic channels

• Civil and commercial; evidence;

use in judicial, existing or contemplated,

in accordance with national law, costs

The 2001 EU Regulation: Two methods

of taking of evidence

The court of a Member State may:

• request the competent court of another MS to

obtain evidence (“active judicial assistance” -direct

transmission of requests between the courts)

• request to gather evidence themselves in another

MS (direct taking of evidence, “passive judicial

assistance”)

European Judicial Atlas – Evidence

E-justice Portal• http://ec.europa.eu/justice_home/judicialatlascivil/html/te_otherinfo_de_en.

htm#te_otherinfo1

• Forms, communications, languages, requested

courts, Central bodies, competent authority,

jurisdiction…)

• PRACTICE GUIDE FOR THE APPLICATION OF

THE REGULATION ON THE TAKING OF

EVIDENCEhttp://ec.europa.eu/civiljustice/evidence/docs/evidence_ec_guide_en.pdf

STANDARD FORMS – E-Justice Portal(to be transmitted by “the swiftest possible means” – see notification of MS)

• A. Request for the taking of evidence

• B. Acknowledgement of receipt of a request for the taking of evidence

• C. Request for additional information for the taking of evidence

• D. Acknowledgement of receipt of the deposit or advance

• E. Notification concerning the request for special procedures and/or for the use of communications technologies

• F. Notification of the date, time, place of performance of the taking of evidence and the conditions for participation

• G. Notification of delay

• H. Information on the outcome of the request

• I. Request for direct taking of evidence

• J. Information from the central body/ competent authority

Doing away with “letters rogatory”

8.10.2016

2

A) Taking of evidence by the requested

court

1) a request (form A) language:

official/accepted language: check here: https://e-

justice.europa.eu/content_taking_of_evidence-76-en.do

2) Direct communication (comparing to the

Hague Convention the role of Central bodies

significantly reduced and different!!!)

the requested court:

checks (7 days) the conformity with the

requirements of the regulation and:

a) sends back acknowledgement of the receipt of

request (form B)

b) informs (30 days) that the request cannot be

executed if there are formal deficiencies (form C)

d) transmits the request to another court in the

same MS if it does not have territorial jurisdiction

8.10.2016

3

Case No. 1: Languages

A requesting court from Sweden sends a request to a Slovenian requested court (Form A) in English(Slovenia notified that it accepts requests in Slovenian or English).

The Slovenian Court finds that it needs additionalinformation before it can decide whether it canexecute the request and informs thereof the Swedish court using the Form C.

It completes the form in Slovenian language. Was it allowed to do so? (Sweden notified that it accepts

requests in Swedish or English)

Refusal to execute (Art. 14; form H):

• 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 MS of the requested court; or

(b) under the law of the MS of the requesting court, and such right has been specified in the request, orconfirmed by the requesting court.

Problem: system suitable for “clear-cut” grounds (e.g. spouses, children, lawyers…), but not where the judgehas to apply principle of proportionality, taking accountof all circumstances of the case: e.g. typically whenprotection of business secrets are invoked

Further grounds for refusal

(a) the request does not fall within the scope of this Regulation (civil, commercial, use in pending or contemplated judicial proceedings)

(b) the execution of the request under the law of the MS of the requested court does not fall within the functions of the judiciary; or

(c) The request is not rectified

(d) a deposit or advance for costs when applicable

• NO reason for refusal: public policy, exclusivejurisdiction…

Execution of the request

4) - within 90 days (otherwise: notification of delay: Form G

- under the national law of the requested court unless:

- The requesting court asked for the request to be executed in accordance with a special procedure provided, unless this procedure is incompatible with the law of the state of the requested court or by reason of major practical difficulties (Form E)

5) The requested court sends to the requesting court the documents establishing the execution of the request and confirmation (form H)

Case No. 2: Execution of a request

The English court requests the Slovenian court to examine the party (who is Dutch, but now lives in Slovenia) as a witness.

The Slovenian judge realizes that the case concerns a consumer, so only the Slovenian court (the place of the defendant’s domicile) has jurisdiction. May it reject to execute the request?

Slovenian procedural law differentiates between examinationof a party and examination of a witness. How should it proceed?

The Slovenian court executes the request. In which language is the claimant examined?

Who covers the costs of translation?

Case No. 3: Participation of the parties

and their representatives• The French court acting as a requested court examines a witness

upon a request of a Slovenian court. . The requesting court has previously notified the requested court of the (intended) presenceof the parties and their representatives and that their participation is required (Form A).

• One of the parties and its Slovenian attorney at law attended the hearing.

• When the attorneywanted to pose a question, the judge interrupted him and stated that a foreign attorney has no right of audience in the French court (unless in conjunction with a locally qualified lawyer; the EU Establishment Directive for Lawyers). The judge stated that Art. 11 of the Taking of Evidence Directive doesnot affect the existing restrictions as to the right of audience for foreign attorneys in local court proceedings and thus are applicableeven without setting such condition in Form F.

• Is this argumentation correct?

8.10.2016

4

Direct taking of evidence

1) a request (form I)

2) sends the request to the Central body (or othercompetent authority) in the requested MS

3) The latter informs the requesting court whether the request is accepted and (if) under what conditions(form J)

• The requesting court takes evidence in accordance with the law of the requesting MS (if not incompatiblewith fundamental principles of its law)

• only on a voluntary basis

• Use of modern technologies promoted

Coercive measures

• Requesting – requested court: YES

• Direct taking of evidence: NO may only take

place if it can be performed on a voluntary

basis without the need for coercive measures

Case No. 4: Is it at all necessary to

apply the Regulation?

• Proceedings are pending in a Slovenian court(Koper). The court wishes to hear a witness, living in the neighbouring Italian city ofTrieste. Should the court rely on one of the methods provided for by the 1206/2001 Regulation (taking evidence through the requested court – Tribunale di Trieste – or direct taking of evidence) or may it summonthe witness to appear at the hearing in the Koper court?

CJEU: Lippens, C-170/11

• Regulation No 1206/2001 does not contain any

provision governing or excluding the possibility,

for the court in one Member State, of

summoning a party residing in another Member

State to appear and make a witness statement

directly before it.

• …it may be simpler, more effective and quicker…

• … it may ensure better quality and more effective

exercise of the parties’ right to be heard

…. Case continued…

So in the above case the Slovenian court summoned the Italian witness to appear at the evidentiary hearing in Koper. Nevertheless the witness does not come. Canthe Slovenian court apply any coercive measuresagainst the witness?

• CJEU in Lippens: Furthermore, if a party fails to appear as a witness without a legitimate reason, that court remains free to take any measures laid down by the law …, provided that they are applied in accordance with EU law.

Case No. 5: Experts

• A claim for damages, suffered in a traffic accident, which occured near Graz (Austria) was filed in the court of the defendant’s domicile - Maribor, Slovenia. The Maribor court appoints an expert for accidentreconstruction. In order to prepare the expert opinionthe expert must inspect and make certain photos andmeasurements in the place where the collisionoccured.

• May the expert travel to Graz (Austria) or should the Slovenian court avail itself to one of the methods forcross-border taking of evidence provided for in the Regulation.

8.10.2016

5

Art. 17 (Direct taking of evidence) 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.

CJEU: Pro Rail, C-332/11, 21 February

2013• A national court ordering a cross-border expert

investigation is not automatically required to use the methods of taking evidence provided for by that regulation.

• … the court of one MS, which wishes the task of taking of evidence entrusted to an expert to be carried out in another MS, is not necessarily required to use the method of taking evidence laid down by those provisions to be able to order the taking of that evidence.

• Possible exception: where it is an investigation carried out in places connected to the exercise of such powers or in places to which access or other action is prohibited or restricted to certain persons.

Case No. 6: Modern technologies

• A Slovenian court wishes to examine a witness in Finland by means of a teleconference. Mayit bypass Finnish authorities and simplyarrange for the videoconference directly withthe witness or does it need to proceed in compliance with the Evidence Regulation?

• If the latter, is this a direct taking of evidence or a taking evidence through the requestedcourt?

Case No. 7: Costs

• The Polish court, where proceedings on meritsare pending, requested the Irish court to examinea witness. Under Irish law a witness is obliged to appear before a court only if he has first received payment for his travel expenses (‘a viaticum’).

• Who is obliged to pay the costs incurred by the witness examined by the requested court

• Can the Irish court require the Polish court to provide advance for this costs?

• Can it at least subsequently reimburse costs fromthe Polish court?

COSTS:Article 18

• 1. The execution of the request….shall not give rise to a claim for any reimbursement of taxes or costs.

• 2. …. the requesting court shall ensure the reimbursement,, of:

• - the fees paid to experts and interpreters, and

• - the costs occasioned by the application of Article 10(3) - requestfor a special procedure ) and Article 10(4) - use of modern communications ) governs the

• The duty for the parties to bear these fees or costs shall be governed by the law of the MS 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.

CJEU: Weryński, ¸17 February 2011 C-283/09

• the concept of costs must be defined autonomously under EU law and does not depend on the classification under national law.

• ‘taxes’: sums received by the court for carrying out its functions,

• ‘costs’: sums paid by the court to third parties in the course of proceedings, in particular to experts or witnesses.

• the reimbursement of fees paid to witnesses, precisely because of the small amount typically involved, was deliberately dropped in the Hague Convention

“…..a requesting court is not obliged to pay an advance to the requested court for the expenses of a witness or to reimburse the expenses paid to the witness examined”

8.10.2016

6

Case No. 8: taking of evidence or

provisional/protective measures?• A Slovenian company wishes to bring a lawsuit in the German court

against a German company, for the alleged patent infringement. The prospective claimant (the holder of the right) wishes to obtain a search warrant allowing the to enter without warning the production facilities and warehouses of the alleged infringer in Romania and seize the infringing goods, also to allow the nominated experts of the prospective claimant to inspect the equipment used to carry out the tests even before the commencement of the procedure on the merits. In addition it wants to obtain a »preliminary hearing of a witness”, residing in Italy, prior to the bringing of proceedings.

• Can the prospective claimant ask for a preliminary and protective measure pursuant to the Brussels I Regulation or does this matter concern cross-border taking of evidence?

CJEU (St. Paul Dairy) v. Brussels Ibis

(Recital 25)St Paul Dairy: The notion (“provisional and protective measures”)

includes measures, which are intended to preserve a substantive claim in law, and does not include measures intended to preserve evidence. The purpose of the preliminary taking of evidence prior to the commencement of proceedings is different as it aims to establish or determine relevant factual circumstances, which may be decisive for a future resolution of a dispute in issue or may support an interested party as regards his position in future judicial proceedings.

Recital 25: the notion of provisional, including protective, measures should include, …, protective orders aimed at obtaining information or preserving evidence as referred to in …. Directive 2004/48/EC …on the enforcement of intellectual property rights. It should not include measures which are not of a protective nature, such as measures ordering the hearing of a witness