Taking of Evidence

Document

Cited authorities 5

Cited in

Author	Gottfried Musger
Profession	Higher Regional Court Judge in Graz
Pages	192-222

Education

1983-87 Law studies at the University of Graz

1988-89 European law studies at the University of Saarbrucken

1990-92 Law Doctorate studies at Graz; dissertation entitled Trans-boundary pollution in private international law'

Professional appointments

1986-88 Research Assistant at the Institute of Civil Law at the University of Graz

1988-89 Research Assistant, Chair of Comparative Law, European Law and Commercial Law at the University of Saarbrucken

1989-92 University Assistant at the Institute of Civil Law, University of Graz

1992-95 Trainee lawyer/trainee judge in the area under the jurisdiction of the Higher Regional Court in Graz

1995-2001 District Court Judge for civil law cases in Graz and District Court Judge in Stainz

2001-02 Regional Court Judge for civil law cases in Graz

Since 2003 Higher Regional Court Judge in Graz (member of the Regional Court Civil Division)

Since 1997 In addition to his work as a judge, he has contributed to Federal Ministry of Justice projects in the field of international civil procedural law, participating, in particular, in European Union working parties (Committee on Civil Law Matters) and the Hague Conference on Private International Law

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1. General

1.1. Objective of the 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 ¹ is based on an initiative by the Federal Republic of Germany ². That initiative was originally simply an attempt to modernise the provisions of the Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters ³. In particular, it was planned to introduce standard forms and considerably facilitate direct business between courts. This was designed to avoid the delays which often result from involvement of central transmitting and receiving bodies. It was, however, otherwise intended to retain the traditional approach to the taking of evidence in mutual legal assistance. The taking of evidence was to have been performed at the request of the court for whose proceedings the taking of evidence is required (requesting court) by a court of the State in which the evidence is to be taken (requested court). The requested court would, in principle, have had to apply its own procedural law. The requesting court would, however, have been entitled to be present through representatives at the taking of evidence but there was no provision for that court itself to take evidence a broad.

In the final version of the regulation, this traditional approach is retained as one of the possibilities (Articles 4 to 16). The courts of the Member States ⁴ are, however, in addition given the possibility, in accordance with their own procedural law, of also directly taking evidence in another Member State (Article 17). This is not just a simplification of the traditional forms of taking evidence, but constitutes the crucial improvement brought about by the regulation in comparison with the legal provisions hitherto applicable under international treaties. Such direct taking of evidence a broad had hitherto usually come to nothing because of sovereignty reservations on the part of the States concerned.

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1.2. General Provisions

1.2.1. Scope

According to Article 1(1) of the regulation, it shall apply in civil or commercial matters. This position is not clarified further; interpretation is to depend on the case-law of the Court of Justice of the European Communities relating to Article 1(1) of the Brussels Convention ⁵. That case-law does not allow any reverting to the substantive or formal law applicable; the concept should rather be interpreted independently ⁶. The scope of the regulation is, it is true, not entirely the same as that of the Brussels Convention or Regulation (EC) No 44/2001 (Brussels I Regulation) which replaces it ⁷, but, provided a civil or commercial matter is involved, also covers subjects which are excluded from the Brussels Convention and Brussels Regulation by Article 1 (2) thereof.

Since the regulation makes no distinction between individual types of proceedings, it is to be applied not only in contested civil proceedings but also in all other civil court proceedings, for example voluntary jurisdiction (uncon-tested proceedings) and insolvency proceedings.

According to Article 1(1) of the regulation, its rules only come into play where the court (of a Member State), in accordance with the provisions of the law of that State, requests the taking of evidence in mutual legal assistance or the taking of evidence directly. Requests by parties, arbitration tribunals or authorities which are not courts are therefore ruled out. This provision further makes it clear that the regulation may not be used to interfere with the national procedural law of the State of the requesting court. That is the only law which can govern a decision as to whether or not a particular request should be made. It must not be concluded from the regulation that the courts of all Member States would henceforth be entitled irrespective of their own procedural law to take evidence directly a broad (Article 17) or to participate in the traditional taking of evidence a broad (Article 12). Such decisions will continue to be governed first by the law of the requesting court. The regulation concerns only the subsequent procedure, i.e. the transmission and execution of the request.

According to Article 1(2), a request is inadmissible if the evidence is not intended for use in judicial proceedings, commenced or contemplated. That provision is worded somewhat misleadingly. A court request - which is the only kind covered by the regulation - presupposes in every case that judicial proceedings (in the broader sense) have already been commenced. Article 1(1) makes a different point: it is not necessary for proceedings to have been commenced yet in the matter (e.g. civil proceedings), but it is sufficient that there should be, for example, evidence-taking by the court for proceedings in thePage 194 matter that are still only being contemplated. Requests pursuant to the regulation could therefore also be made in the course of such evidence-taking. A request would only be inadmissible if it were not for the purpose of obtaining evidence for proceedings (which have been commenced or are still being contemplated) on the substance of the matter.

1.2.2. Direct Transmission Between the Courts, Central Bodies

Article 2 contains a key element for speeding up the traditional approach to evidence-taking. Pursuant to that article, requests are to be transmitted not via central bodies but directly from court to court. The courts responsible for the performance of the taking of evidence are to be made known by the Member States, indicating their respective territorial jurisdiction (Article 2(2)), and to be listed by the Commission in a manual (Article 19).

It is clear from the wording of Article 2 that it is to be applied only to traditional mutual assistance requests. The provision will, however, also have to be used when it proves necessary in the direct taking of evidence a broad to contact a court assigned by the competent authority of the requested State (Article 17(4), second subparagraph).

The central bodies to be designated pursuant to Article 3(1) ⁸ have only limited functions. Their primary function is to supply information to the courts and seek solutions to any difficulties which may arise in respect of a request. Only in excep -tional cases do they have to forward a request, for example when no competent court can be found in the Commissions manual. In addition, central bodies may also be designated by the Member States to be responsible for taking decisions on requests for direct taking of evidence. It is, however, also possible to confer that power on other authorities (including courts if necessary).

1.2.3. Language Rules and Means of Communication

Article 5 settles the question of the language in which requests and communications pursuant to this regulation are to be drawn up. Although this provision is to be found in Section 1 of Chapter 2

('Transmission of the request'), it is of comprehensive scope. It is to be applied not only to requests for traditional evidence-taking but also to all related communications (Articles 7 et seq.), to requests to take evidence directly (Article 17) and to all communications concerning the costs of the proceedings (Article 18). This provision will also be applicable in any necessary business with central bodies.

The choice of language in any individual case is a matter for the court which draws up the request or communication concerned. 1 here are in principle two possibilities here: on the one hand, the official language of the requested StatePage 195 may be used. If there is more than one official language there, the language used should be that of the place where the requested taking of evidence is to be performed. On the other hand, each Member State shall indicate at least one official language of the institutions of the European Community other than its own which is acceptable to it for completion of the forms. Those languages are in turn listed in the Commission's manual (Articles 19 and 22).

The requested court (or in the case of direct taking of evidence the requested body pursuant to Article 17) is not prejudged by the choice of language made by the requesting court. Even where the request is made in another (admissible) language, it is always possible to reply in one's own official language.

In practice, this means that, if Germany accepts English as an additional language, requests to German courts (or the requested body pursuant to Article 17) may be made in English or German. The requested court (or the requested body pursuant to Article 17) may also draw up its communications and other business in English or German. There is no obligation to employ the language used in the request.

A further language rule is to be found in Article 4(3), which states that documents which it is necessary to enclose with the request shall be accompanied by a translation into the language in which the request was written. There is not, on the other hand, any ruling on the language in which the documents on performance of the requested taking of evidence (e.g. minutes of questioning of witnesses or evidence obtained from expert witnesses in mutual legal assistance) are to be drawn up. The regulation clearly assumes that in this case it is in principle the official language of the requested State that is to be employed, even when the communication concerning performance of the taking of evidence (form H) is transmitted in another admissible language. The requesting court will in any case then be able to request that the documents be drawn up in another language. That would constitute a special procedure for the taking of evidence within the meaning of Article 10(3).

2. Taking of Evidence in Mutual Legal Assistance

2.1. Bases

The taking of evidence in mutual legal assistance is initiated by a request within the meaning of Article 4. Whether and at what stage in the proceedings a request for such taking of evidence is made is determined solely by the requesting court on the basis of its procedural law.

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The requested court shall in principle execute the request in accordance with the law of its Member State (Article 10(2)). But there are exceptions to this rule: the requesting court may call for use of a special procedure provided for by the law of its Member State (Article 10(3)). Moreover, the regulation includes special rules on performance of the taking of evidence, in particular by using communications technology (Article 10(4)), the presence or participation of the parties (Article 11) and the presence or participation of representatives of the requesting court (Article 12).

There is a twofold limit on such departures from the principle in Article 10(2). On the one hand, the requesting court must expressly ask for them (or communicate the intended presence). Whether such a request is admissible depends on the law of the requesting State. On the other hand, Articles 10(3) and (4), 11(3) and 12(4) offer the requested court the options - albeit very limited - of not complying with the request pursuant to the law of its Member State or of only doing so on certain conditions.

2.2. Content and Transmission of the Request

The request must be made using form A. The details required are indicated in Article 4 and correspond in the main to those in Article 3 of the 1970 Hague Convention on the Taking of Evidence.

As well as details of the requesting court and the parties and their representatives (Article 4(1) (a) and (b)), the nature and subject matter of the case and a - brief- statement of the facts are required (Article 4(1)(c)). That includes, on the one hand, the non-contentious facts and, on the other hand, the issues in dispute between the parties. The requested court should be given as clear a picture as possible of what is actually involved in the requesting courts procedure. This facilitates performance of the taking of evidence. The requested court is thus not limited to mechanically repeating pre-formulated questions, but should - in line with the terms of the request - be able to react to developments in the course of the taking of evidence. To that end, all the details required must be provided and any necessary documents enclosed, accompanied by a translation (Article 4(3)).

The requested taking of evidence must therefore be described as precisely as possible (Article 4(1)(d)). In many cases, this will involve questioning people - either parties or witnesses. However, another possibility would be to call for an expert opinion, for a local inspection to be carried out or for information to be provided (e.g. documents, information media, films, detailed records, etc.).

When examining persons (Article 4(1)(e)), the questions to be asked or the facts in connection with which they are being examined must be indicated,Page 197 along with their names and addresses. Above all, the requesting court must specify the reasons for taking evidence and state on which (contentious) issues further information needs to be provided. In this case, it may be helpful to supply a list of actual questions, although this should under no circumstances be regarded as definitive. In the course of taking evidence, there may be developments which could not be foreseen at the time the list was drawn up. This is why it is pointless to confine the role of the requested court to the mechanical reproduction of preformulated questions. As a matter of principle, far greater emphasis should be placed on the fact that every court in the European Union itself knows best in any given situation which questions would provide the most effective means of clarifying the facts.

Furthermore, information must be forwarded concerning any possible rights to refuse to give evidence under the law of the requesting State, given the prerogative of the person to be examined to invoke such rights (Article 14(1)(b)). This applies not only to rights to refuse to give evidence in the strictest sense. Accordingly, if a party is to be examined, as opposed to witnesses, and if the law of the requesting State also provides for such a right to refuse to give evidence, the relevant information must still be forwarded.

If an examination under oath or a sworn statement is desired, this must be requested separately and, where appropriate, the form of the oath must be indicated. It follows that, unless specifically requested, no affirmation by oath should be given. Also, if requested, in principle this must be given in accordance with the law of the requested State. If there is no provision under that law for an oath or a sworn statement or if the use of a specific form of oath is required under the law of the requesting State, then a request for compliance with a special procedure within the meaning of Article 10(3) must be submitted.

If, in the case of any other form of taking of evidence, there is a request for objects or documents to be inspected, these must be precisely described (Article (1)(f)). This condition applies, in particular, to requests for an expert opinion. In this case, the location of the objects or documents must also be specified, as well as whether the respective owner is obliged to allow the inspection.

If there is a request for any special means or method of taking evidence - either under the law of the requesting State within the meaning of Article 10(3) or pursuant to Articles 10(4), 11 or 12 - the necessary explanations must be provided.

In accordance with Article 6, requests and all other communications must be transmitted by the swiftest possible means. Each Member State must indicate which means of transmission (post, fax, electronic transmission, etc.) it will allow for requests and communications to be sent to its central body or its courts. On the basis of the wording of Article 6, such indications apply onlyPage 198 to requests and communications to a requested State or a requested court. The issue of which means must be used to transmit communications from the requested to the requesting court has therefore not been addressed. Logically, however, the focus of attention will be on the data provided by the State to the courts of which a communication is to be forwarded.

Naturally the transmitted documents must be legible. It must also be ensured that the received documents match those which were sent. This is particularly important in the case of electronic means of communication.

When dealing with requests, the occasional need for further enquiries will arise. While the regulation makes no specific provision for this, its overall objective generally favours the simplest and least formal arrangement possible. In addition to fax and e-mail, special consideration must be given to applications by telephone. In this case, however, it must be ensured that the competent persons in the requesting and requested courts are actually able to communicate in the languages notified by their respective States.

2.3. Execution of the Request

1.1.1. Procedure on Receipt of the Request

Where a request to proceed with the taking of evidence is submitted to a court of a Member State, the following points must immediately be checked in accordance with Article 7:

- Is the request legible?

- Was a permitted language used?

- Is the requested court competent to take evidence?

If the answer to each of these questions is yes, an acknowledgement of receipt (form B) must be sent to the requesting court within seven days of the request arriving. If the request is illegible or not drafted in a permitted language, this must also be notified within seven days using form B; the request must be returned to the requesting court. Where the requested court does not have jurisdiction, the request must be forwarded to the competent court; the requesting court must also be notified of this by sending it a copy of form A with point 14 ('Notification of the forwarding of the request') completed.

The requested court must then ensure that the request contains all of the necessary information, in accordance with Article 8(1). Where this is not the case, the requesting court must be so informed within 30 days of receipt of thePage 199 request by means of form C. All missing information must be described as precisely as possible. Where applicable, a communication concerning any advance required for experts' fees (Article 18(3)) must also be forwarded within the same period (Article 8(2); see also Section 4.3 below).

An additional means of verification is provided for in Article 14 (2) (a) and (b). Under these provisions, the execution of a request may be refused if it does not fall within the scope of this regulation or within the functions of the judiciary under the law of the requested State. The requesting court must be informed to this effect using form H within 60 days of receipt of the request.

Under Article 10(1), the request must be executed within 90 days. In principle, this time limit begins to run as soon as the request is received by the requested court. However, in the event of non-compliance within the meaning of Article 7 or Article 8(1), the time limit does not begin to run until receipt of the completed request (Article 9(1)). Where the requested court makes the request for an expert opinion conditional upon an advance towards the costs, the time limit begins to run as soon as the advance is made (Article 9(2)).

If owing to exceptional circumstances the 90-day time limit cannot be met, the requesting court must be so informed by means of form G (Article 15). This information must be forwarded as soon as it becomes clear that the deadline cannot be met. The reasons for the delay and the expected time needed to execute the request must be included.

In practice, it would be logical to connect the abovementioned steps together. As a rule, it should be possible within seven days of receiving the request to:

- check whether the court is actually competent for the execution of the request (and, if not, forward the request to the competent court);

- check that the request formally complies with Article 7 and send the acknowledgement of receipt;

- check that the content of the request complies with Articles 8 and 14(2) (a) and (b); and

- where the above conditions exist, carry out immediately all the measures required for the taking of evidence, and, in particular, set the deadline for the questioning of witnesses or parties.

In cases where the request cannot be executed within 90 days, immediate notification must be given in accordance with Article 15 and the precise date for the taking of evidence announced. It may be easier to comply with the 90-day execution period - already a highly ambitious target - by adopting this kind of concentrated approach at the beginning of the procedure rather than using up the whole of the period for checking the content.

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After execution of the request, the files containing the evidence (minutes of questioning, expert opinions, etc.) must be returned to the requesting court together with an acknowledgement of receipt (form H) in accordance with Article 16.

2.3.2. Execution of the Request Under the Law of the Requested State

In principle, requests must be executed in accordance with the law of the requested State (Article 10(2)). Apart from any exceptions yet to be discussed, all issues directly concerning the taking of evidence are thus subject to that law. This applies not only to purely formal matters (e.g. the procedure and means used to document questioning), but also other provisions governing the procedure used to take evidence (such as the selection and payment of experts or the publication or non-publication of the taking of evidence).

Under the law of the requested State, consideration must also be given to any necessary coercive measures (Article 13). This applies, on the one hand, to the enforced appearance of witnesses and, on the other hand, to penalties for failure to comply with court orders. No special application is required for this. If under the law of the requested State coercive measures are automatically applied in an internal matter - for example, where a witness is absent or where a person obliged to conduct an inspection refuses to do so - this must also be the case for the taking of evidence in accordance with the regulation. However, under certain conditions (Article 10(3)), the requesting court could call for no coercive measures to be applied and instead for the request to be returned without having been executed. In particular, this would be appropriate in specific situations where it would be unlawful under the law of the requesting State to use constraint when taking evidence.

2.3.3. Execution of the Request in a Way Departing From the Law of the Requested State

There are a number of exceptions to the principle whereby requests are executed under the law of the requested State. On the one hand, the requesting court may call for compliance with a special procedure provided for under its own law (Article 10(3)), while, on the other hand, the regulation lays down a number of autonomous rules on executing requests (Articles 10(4), 11 and 12). These provisions need only concern the requested court if there is a specific request to that effect (form A, points 9, 10 and 13.1). Whether the requesting court makes such a request or is content for the taking of evidence to be performed in accordance with the law of the requested State depends solely on the law of the requesting State. This is a purely internal question, which is in no way affected by the regulation. In particular, none of the rules in the regulation can be interpreted as meaning that the taking of evidence in ac-Page 201cordance with the law of the requested State is always sufficient (equivalent to the internal taking of evidence) for the procedure of the requesting State.

If a procedure for evidence-taking that departs from the law of the requested State is called for, it will more often than not be necessary for the requesting and the requested courts to contact each other in order to remove any uncertainties or to find solutions should the requested court not permit the desired procedure for evidence-taking. No specific forms are provided for this. It would be sensible for contacts between the courts involved to be as informal as possible.

2.3.3.1. Execution in Accordance With a Special Procedure (Article 10(3))

Under Article 10(3), the requesting court may call for performance of the taking of evidence in accordance with a special procedure based on the law of the requesting State. There are many ways of applying this provision. It is not necessary for the whole of the evidence-taking to follow the procedure laid down in the law of the requesting State. It is also conceivable that use will only be made of specific points in that law, for example a particular procedure for instructing witnesses as to their obligation to tell the truth, a particular way of drawing up minutes or a particular wording of the oath.

A special procedure for the taking of evidence may also arise in response to a call for particular provisions of the requested State not to be applied. This could occur with coercive measures: the law of the requested State might provide for means of forcing parties to testify. If that is excluded in the requesting State, the requested court would have to be informed accordingly. The latter would then have to refrain from applying coercive measures (Article 13) and in the case of a refusal to testify send back the request without having executed it.

A request to follow a special procedure provided for by the law of the requesting State may only be refused if such a procedure is incompatible with the law of the requested State or by reason of major practical difficulties (Article 10(3), second sentence). There is only incompatibility if the law of the requested State expressly excludes such a procedure; the fact that there is no provision for the procedure in its law is not in itself an obstacle. It may, however, be prohibited on the basis of the general principles of the law of the requested State: where, for example, the law of that State only permits coercive measures if and to the extent that an express legal basis exists, a request for application of a coercive measure that is not provided for in the law in question must be refused.

Practical difficulties must indeed be major if they are to be used to justify refusal. This can be illustrated by the following example concerning the entry of a testimony in the minutes:

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Under the law of the requested State, the judge uses a tape recorder to dictate the minutes of any questioning. Those present only sign a form to the effect that they have heard the dictation. They do not sign the minutes subsequently written up on the basis of the dictation. The request could therefore, instead of this procedure, call for the procedure in the law of the requesting State whereby the minutes are drawn up by a secretary during questioning and signed by all those present.

This undoubtedly amounts to the following of a special procedure within the meaning of Article 10(3). Even if the procedure is not provided for in the law of the requested State, one would be hard put to find a reason why it should be incompatible with that law. It might well be the case that involving a secretary - perhaps because of shortage of staff - creates practical difficulties. However, these will hardly be major difficulties within the meaning of Article 10(3). As a rule, it will always be possible to find among the staff of a court a suitable person to draw up minutes on the spot.

If the following of a special procedure is refused, the requesting court shall be informed using form E (Article 10(3), third sentence). The regulation's objective of ensuring the most efficient taking of evidence a broad as possible would be best served by not immediately notifying a refusal but informally contacting the requesting court and trying to find solutions. This might well prompt the requesting court, following informal notification of the likely refusal of a special procedure, to modify its request so that it asks for the taking of evidence in accordance with the law of the requested State.

2.3.3.2. Use of Communications Technology

The use of communications technology is cited in Article 10(4) as a separate procedure for the taking of evidence peculiar to the regulation. Here a distinction should be made between two categories.

Communications technology may first be used to record traditional taking of evidence not only by means of a written report but also by means of a picture or sound recording. In such a case, not only the report but also the picture or sound recording is made available to the requesting court once the request has been completed.

In addition, communications technology can also be used to enable the parties and/or the requesting court to observe the taking of evidence directly or even to take an active part in proceedings by means of a videoconference. More detailed provisions on this are to be found in Articles 11 and 12.

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Moreover, the rules on the use of communications technology are comparable to those which also apply to compliance with a special procedure under the law of the requesting State (Article 10(3)). The first condition is a request to this end. The requested court can refuse this request if such a procedure - for example, on grounds of privacy issues - is incompatible with the law of the requested State or is not feasible as it would cause major technical difficulties. Such difficulties can also be overcome in accordance with the last subparagraph of Article 10 (4) by the courts making the necessary technical means available to each other. In addition, the regulation does not make it clear that it would be inadmissible for the necessary means to be made available by the parties.

The possibilities of refusal conflict with the fact that the regulation recognises the basic admissibility of using modern communications technology. The regulation should therefore be interpreted restrictively. A Member State is not allowed to include or to maintain provisions in its legal system which completely prohibit the use of communications technology. Such a procedure would mean that Article 10 (4) would be completely deprived of its practical effect in that State. This would conflict with general principles of Community law. In addition, Article 10(4) imposes an obligation on Member States to adjust the technical equipment in their courts to the requirements of the day.

2.3.3.3. Participation of the Parties or Their Representatives

Article 11(1) to (4) governs the role of the parties and/or their representatives when the requested court takes evidence. Here a distinction should be made between presence and participation. Presence (Article 11(1)) is the narrower expression and means mere physical presence, while participation (Article 11(3)) covers every form of active involvement - for example, the questioning of witnesses. Such involvement may also take place by means of a videoconference.

The condition for the application of Article 11(1) to (4) is a request for the presence or participation of the parties or their representatives. Whether such a request is made depends in turn solely on the law of the requesting State. This is already made clear in the general instruction in Article 1(1) and is confirmed by the introductory sentence of Article 11(1) ('If it is provided for by the law of the ... requesting court ...'). Article 11 does not therefore justify any of the presence or participation rights of the parties which are independent of the law of the requesting State. Rather, the provision only ensures that a right of presence or participation under that law is also respected by the requested court.

The presence of the parties or their representatives under Article 11(1) is an absolute right which may not be restricted by the requested court. The intended presence is therefore only communicated in the request, no 'request' isPage 204 actually made (in the strict sense). The requested court must not plead that under its law the parties do not have to be present at the performance of comparable taking of evidence.

In contrast, the requested court is entitled under Article 11(3) to determine conditions for the active participation of the parties or their representatives. Article 11(3) does not state what conditions could be involved here. Instead, a general reference is made to Article 10. This means the following: in principle, active participation of the parties or their representatives should take place as provided for in the law of the requested court (Article 10(2)). With regard to what is probably in practice the most important aspect of participation, the putting of questions to persons to be heard, the parties or their representatives thus have precisely the same powers as the parties or their representatives would have in internal proceedings in the requested State. If, however, the requesting State asks for a different participation procedure (for example, a right to ask more detailed questions or participation in the form of a video -conference), the request is to be complied with in accordance with Article 10(3) unless it is incompatible with the law of the requested court or is not feasible because it would cause major practical difficulties.

The formal procedure is laid down in Article 11(2) and (4). A condition for the presence or participation of the parties is a corresponding request (Article 11(2)). This request can be made either using form A or separately. Form A clearly shows the difference in treatment between (mere) presence and (active) participation: the intended presence is simply communicated (point 9.1), whereas participation is requested (point 9.2). In the event of participation, more details will have to be given of what form such participation should take. Since form A does not contain a separate heading for this, a description of the desired participation will have to be included in an annex.

Further on, in form F, the requested court notifies the parties or their representatives of the time and place of performance of the taking of evidence and, where appropriate, conditions under which they may participate (Article 11(4)). No particular method of transmission is laid down for this form. The requested court will therefore in principle have to proceed in accordance with its law. If the requesting court wants this form to be served on the parties in a particular way, it will have to request this in accordance with Article 10(3). No translation of the form is required; the general rule in Article 5, in fact, also covers communications in accordance with Article 11(4). For practical reasons, it would be appropriate to send the communication for documentation purposes to the requesting court as well.

While Article 11(1) to (4) governs the right provided for in the regulation of parties to be present or to participate in the taking of evidence, paragraph 5 states a self-evident truth: even if the parties are not requested to be present orPage 205 to participate, the requested court can ask the parties to be present or to participate. This already follows from Article 10(2) whereby requests are to be executed in accordance with the law of the requested State. Where that law provides for the presence or participation of the parties, the requested court can also avail itself of this law if no request is made in this connection. However, Article 11(5) sets a limit: the condition for the presence or participation of the parties is that appropriate provision is also made in the law of the requesting court. The taking of evidence a broad must not lead to a situation where the parties to specific proceedings suddenly have more rights than in purely internal proceedings. If in such a case the taking of evidence without the participation of the parties is incompatible with the law of the requested State, it could be refused (Article 10(3)).

2.3.3.4. Participation of Representatives of the Requesting Court

The possibility of representatives of the requesting court being present at the taking of evidence or of taking (an active) part therein is covered by Article 12. Here, too, a special procedure for the traditional taking of evidence is involved. The requested court therefore takes charge of the taking of evidence, unlike what happens in the case of direct taking of evidence in accordance with Article 17.

Article 12(2) determines who is to be considered a representative of the requesting court solely in accordance with its law. In practice, members of that court - primarily a judge dealing with the matter - and experts will be involved. To that extent, the requested court has no powers of examination: if a person is named in the request as a representative of the requesting court, it should be assumed that this act of representation actually occurs.

Article 12 has a dual aim: firstly, it should be made possible for the representatives of the requesting court directly to observe statements made by persons being questioned. This may be of decisive importance for the evaluation of such statements. Mere (passive) presence of the representative is sufficient for this aim. Active participation has a wider significance. When evidence is taken, developments may occur which could not have been envisaged even in the most detailed of requests. If a representative of the requesting court is present, he can react to such developments and, for example, ask questions, the need for which arises only from the statements previously given by the persons being questioned. If an expert is sent as a representative, he will also be able to put additional technical questions which are of importance for the production of his report.

The structure of Article 12 scarcely differs from that of Article 11. The condition for applying this provision is therefore once again a corresponding request. The law of the requesting court determines whether such a request canPage 206 be made or, if need be, even has to be made. Article 12 thus does not provide justification for the right, which is independent of the law of the requesting State, of the representatives of the requesting State to be present or to participate. The provision applies only if this right enables representatives of the court to be present or to participate in the taking of evidence a broad or, if need be, prescribes this course of action.

The mere presence of representatives of the requesting court must, however, be permitted in the taking of evidence (Article 12(1)), whereas active participation (for example, right to put questions) is allowed only in accordance with the conditions set by the requested court (Article 12(4)). These conditions are again to be determined in accordance with Article 10. The limits on active participation are therefore incompatibility with the law of the requested court and major practical difficulties. According to general principles of Community law, the law of the requested court may not, however, be interpreted so strictly that the right to active participation guaranteed in Article 12(4) is deprived of all practical effect. In detail, this means the following: the focal point of the right to participate will be the possibility of putting questions to persons giving evidence. The exact form of this right to put questions will be determined by the law of the requested court.

In particular, this basis will have to be used to determine whether the questions are to be put directly or via the judge of the requested court who is leading the questioning. This judge will also be able to reject individual questions if they, for example, conflict with rights of a witness to refuse to give evidence under the law of the requested State. However, it would be inadmissible to preclude all rights of the representatives of the requesting State to ask questions.

Article 12(3) and (5) covers the formal procedure. Under Article 12(3), the requesting court can already include the information that a representative is to be present at the taking of evidence or the request for active participation in the original request for mutual assistance (form A); however, this information can also be transmitted at a later stage. The requested court therefore informs the requesting court using form F of the place and time of the pro -ceedings and, if necessary, also indicates the conditions for such participation. Before the formal notification takes place, it will be useful for both courts to agree informally (by phone) on a date.

2.3.4. Grounds for Refusal

Article 14(1) and (2) contains a summary of (completely different) grounds for refusing to execute a request. This provision is of a definitive nature if the request was for the taking of evidence in accordance with the law of the re-Page 207quested State. Other grounds for refusal may not be adduced in such a case. If, on the other hand, a request for the taking of evidence is made which is not in accordance with that law, the grounds for refusal referred to in Article 10(3) and (4) are still to be observed (see Subsection 2.3.3 above).

Article 14(1) first covers the case of the right to refuse to give evidence or aprohibi-tion from giving evidence under the law of the requesting or requested State. According to the text of the provision, account is to be taken of these restrictions only if the person to be heard - if necessary after receiving instructions on this matter from the court - invokes them. There is consequently no provision for officially recognising bans on persons giving evidence. In general, such grounds for refusal will therefore not be recognisable until questioning has been attempted. If the person being questioned invokes the right to refuse to give evidence under the law of the requesting State and if no information is available on this matter, the requested court has to ask the requesting court for clarification. There is no separate form for this. If it emerges that there were grounds for refusing to give a statement, the requesting State is to be immediately notified using form H.

Article 14 (2) (a) and (b) contains grounds for refusal which must already have been noticed when the substance of the request was being examined. They are to be notified to the requesting court within 60 days of the request being received (Article 14(4)).

Under Article 14 (2) (a), the execution of a request can be refused if the request does not fall within the scope of the regulation. Whether this is the case needs to be examined in accordance with criteria peculiar to this regulation (see Section 1 above).

Under Article 14(2) (b), the execution can be refused if under the law of the requested court it does not fall within the functions of the judiciary. This provision applies only to the (hardly imaginable) case where under the law of the requested State a particular type of taking of evidence was to be carried out independently of the subject matter of the proceedings not by courts but by other bodies. In contrast, there is no provision for the situation where a matter to be classified under the regulation as a civil case does not fall within the functions of the judiciary in the requested State. If a court requests that in such a case evidence be taken which because of its nature is the responsibility of the courts in the requested State as well (e.g. requests that witnesses be questioned), Article 14(2)(b) is not applicable and the taking of evidence is therefore to be carried out. This emerges, in particular, from Article 14(3) whereby a request (inter alia) may not be refused because there is no judicial procedure in the law of the requested State corresponding to that of the requesting State.

Article 14(2) (c) and (d) covers the legal implications of a request to complete the request (Article 8) or to pay an advance (Article 18). If such a request isPage 208 not complied with within 30 days (completion) or 60 days (advance), the execution of the request may be refused. On the expiry of the time limit, the requesting State is to be notified without delay. The fact that Article 14(4) also makes provision for a 60-day time limit for such cases from receipt of the request must be a mistake on the part of the drafter; a refusal is, of course, not possible until the time limits specified in Article 14(2)(c) and (d) have lapsed unutilised.

Other grounds for refusal are not provided for. This is clear from the conclusive wording of Article 14(1) and (2), first sentence. Furthermore, Article 14(3) expressly stipulates that the court may not refuse to execute the request if the requested State has exclusive jurisdiction in the proceedings underlying the request. The requested court is thus obliged by the requesting court to settle the question of jurisdiction. This constitutes a certain contradiction under the European Law on Civil Procedure. Under Article 35(1) of Regulation (EC) No 44/2001 (Brussels I Regulation), any infringement of the provisions on exclusive jurisdictions entitles the court to refuse to recognise and enforce a judgment.

3. Direct Taking of Evidence

The possibility for the direct taking of evidence a broad (Article 17) represents major progress in relation to the previous legal situation. Unlike the traditional taking of evidence by way of mutual legal assistance, the requesting court performs the taking of evidence under its own law, as a rule, without the participation of the courts of the State in which the taking of evidence is to take place (Article 17(3) and (6); for exceptions, see below).

The question of whether a court may, or, where applicable, has to make use of the possibility provided by the regulation for the direct taking of evidence a broad depends entirely on its law. This follows from Article 1(1)(b); Article 17 is only applicable if a court requests under its own law to take evidence directly a broad.

The law of the requesting State also determines who performs the taking of evidence (Article 17(3)). In practice, two scenarios, in particular, are conceivable. Firstly, the court itself- i.e. the competent judge - may take evidence a broad. Secondly, an expert may be sent, who conducts inquiries a broad and on that basis then submits an opinion to the court before which the case is pending.

In the elaboration of the regulation, the question of whether sending an expert also constitutes direct taking of evidence in the sense of Article 17 was contentious. Some Member States held the opinion that the expert's conduct ofPage 209 inquiries was not in itself an activity of the court and therefore did not fall within the scope of the regulation anyway. As a result, the courts were in principle free to send experts a broad. Other delegations, on the other hand, regarded the activity of an expert as an activity of the court of the sending State (in the wider sense) and therefore, on the grounds of general international law and in the absence of an explicit authorisation, considered it inadmissible. Article 17(3) settled this dispute in favour of the stricter interpretation. Thus, sending an expert is also only possible pursuant to the procedure in Article 17.

The possibilities for the direct taking of evidence a broad are restricted on a number of counts. Firstly, it may only take place on a voluntary basis (Article 17(2)). Thus, a court may under no circumstances impose coercive measures of any sort a broad. All persons to be heard must be expressly informed that any statements made will be on a voluntary basis.

In addition, the competent authority of the requested State may set conditions for the taking of evidence (Article 17(4)). One such condition may, in particular, be the participation of a court of the requested State. In this case, however, the taking of evidence is also incumbent upon the requesting State; the court assigned by the requested State only has to ensure that Article 17 is properly applied and that any conditions set are met.

A request for evidence to be taken directly may be refused if the request does not fall within the scope of the regulation or does not contain all information required under Article 4 (Article 17(5) (a) and (b)). These grounds for refusal are the same as those which apply to requests for evidence to be taken by traditional means (Article 14(2)(a) and (c)). In addition, direct taking of evidence may be refused if it is contrary to fundamental principles of law in the requested State (Article 17(5)(c)).

The practical significance of the last ground for refusal may not be too great. Firstly, ageneral refusal of any form of direct taking of evidence, by the courts of other Member States on the basis of this ground for refusal, is ruled out on the grounds that the sovereignty of the State concerned would be encroached upon as a result. Indeed, the purpose of Article 17 is to settle precisely these questions of sovereignty, which may arise under general international law. Furthermore, Article 17 would lose all practical effectiveness if Member States were free to refuse any form of direct taking of evidence on the basis of fundamental principles of law. For this reason alone, such a broad interpretation of Article 17(5) (c) is inadmissible.

This ground for refusal may therefore only be invoked if the direct taking of evidence envisaged in an individual case contravenes fundamental principles of law in the State in which it is due to take place. It should be taken into account that, under Article 17(2), evidence may in any case be taken on a voluntary basisPage 210 only, with no coercive measures. As a result, Article 17(5) (c) will only come into play if the taking of evidence envisaged contravenes fundamental principles of law in the State in which it is due to take place, even when all participants are taking part on a voluntary basis. It is very difficult to imagine such a situation. It is most likely to arise when the voluntary nature of the participation is doubtful - when, for example, the hearing of children is envisaged.

The fact that the performance of direct taking of evidence may only be refused if it contravenes fundamental principles of law of the State in which it is due to take place also affects the interpretation of Article 17(4). The conditions laid down by the requested State may not be such that in reality the direct taking of evidence is refused. For example, this would be the case if the role of the court assigned by the requested State pursuant to Article 17(4) was so important that in reality performance of the direct taking of evidence was incumbent upon that court (and not the requesting court).

The formal procedure for the direct taking of evidence is laid down in Article 17(1) and (4). For decisions on requests for evidence to be taken directly pursuant to Article 3(3), each Member State must designate either the central body pursuant to Article 3(1) and (2), or one or more other authorities. These may also be courts. A court wishing to take evidence in another Member State must submit a request to this competent authority using form I (Article 17(1)), describing the taking of evidence envisaged in as much detail as possible. The competent authority of the State in which the taking of evidence is to take place must inform the requesting court within 30 days using form J whether, and, if so, under which circumstances, the taking of evidence is authorised (Article 17(4)). The use of communications technology should be encouraged (Article 17(4), third sentence).

There are no provisions on the legal consequences of the 30-day period lapsing without a reply. In the absence of explicit instructions, silence would probably not be taken to mean agreement. The requesting court would therefore have to wait for a decision by the competent authority even after the time limit had expired. If, however, the time limit was frequently exceeded, failure to fulfil an obligation pursuant to Article 226 of the EC Treaty would undoubtedly exist.

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4. Costs

4.1. Principle

Under Article 18(1), fees or costs arising from execution of the request for evidence to be taken may not be reimbursed. Provision of mutual legal assistance must therefore be in principle free of charge. This rule must be applied analogously, if the requested State pursuant to Article 17(4) assigns a special court to ensure compliance with the conditions set for the direct taking of evidence. No costs may be charged for this either.

4.2. Ensuring the Reimbursement of Costs by the Requesting Court

In derogation from the basic rule in Article 18(1), Article 18 (2) provides for a reimbursement of costs for certain measures which are potentially costly. This covers the costs of experts and interpreters, as well as expenses arising from the use of special forms (Article 10(3)) or communications technology (Article 10(4)).

Apart from the special case of experts' costs (see Section 4.3 below), Article 18(2) only takes effect after the taking of evidence has been performed. Under Article 18(3), the performance of the taking of evidence, other than the expert's opinion, may not be conditional on an advance on costs. The requested court must therefore also execute a request for evidence to be taken when it gives rise to costs which must be reimbursed under Article 18(2). If evidence can only be taken at the requested court by incurring costs - if, for example, an interpreter will only step in when his/her costs are paid in advance - the requested court is obliged to advance such costs. The application of provisions under the procedural law of the requested State, whereby in such cases the taking of evidence is conditional on payment of an advance by the parties, is ruled out by Article 18(3) (with the exception of the expert's opinion).

If a request for reimbursement of costs is made subsequently, the requesting court must immediately ensure reimbursement. The court may either pay these costs itself or invite the parties to pay. The question to be settled in this connection, i.e. whether, and if so, which parties are obliged to pay, is governed exclusively by the law of the requesting court (Article 18(2), last sentence). In its relations to the requested court, the obligation to ensure reimbursement lies, however, with the requesting court. If, therefore, the parties are unable or unwilling to pay, the requesting court must also bear the costs when under its law the parties are in fact obliged to pay. InPage 212 order to avoid this subsidiary liability, a request that is likely to involve costs should only be made when any or all costs have been reimbursed in advance at the requesting court by the parties liable for payment under its own law.

4.3. Advance on Costs

The rule in Article 18(2) also applies to experts' fees. The requested court may therefore pay the costs arising from an expert itself initially and then ask the requesting court for reimbursement. However, Article 18(3) also makes it possible to make the expert's opinion conditional upon payment of an advance on costs.

To this end, the requested court may ask the requesting court by means of form C to pay an advance on costs (Article 8(2), first sentence). The requesting court may either pay this advance itself or invite the parties to do so. The question of whether the parties are obliged to pay the advance, and if so, which parties, and what the consequences are of non-payment on the proceedings of the requesting court, is once again governed by the law of that court.

Receipt of the advance on costs must be confirmed by the requested court pursuant to Article 8(2), second sentence, within 10 days by sending form D. The 90-day completion period for the request only begins at this point (Articles 9(2) and 10(1)). The level at which the expert's fees should subsequently be fixed and the question as to whether the parties to the original proceedings have a right of say in this are governed exclusively by the law of the requested court. It is obvious, and therefore did not require any special provisions, that any remainder of the advance following payment of the expert's fees must be paid back to the requesting court.

If the advance is not received within 60 days of the request, completion of the request may be refused (Article 14 (2) (d); form H). Naturally, this does not prevent a repeated request from being made, if at this point the parties or the requesting court decide to pay the advance on costs after all.

The last sentence of Article 18(3) stipulates expressly that payment of an advance on costs may not be a condition for the execution of other requests. We have already referred to the consequences of this rule (see Section 4.2 above).

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5. Final Provisions

The regulation formally entered into force on 1 July 2001 (Article 24(1)). However, the provisions of relevance for the courts are only applicable from 1 January 2004 (Article 24(2)). Prior to this, Member States had to inform the Commission of the following by 1 July 2003 (Article 22):

- the courts competent for performing the taking of evidence, and their respective jurisdictions;

- the central authorities and the authorities competent for authorising the direct taking of evidence;

- the technical means for the receipt of requests available to the courts competent for the taking of evidence;

- the languages accepted for requests.

On the basis of this information, the Commission drew up a manual pursuant to Article 19(1), which also has to be available electronically and kept up to date. If any changes occur in the Member States at a later stage, the Commission must be informed of these immediately.

In relations between the Member States pursuant to Article 21(1), the regulation prevails over all relevant bilateral and multilateral agreements. As the most important source of law in this field to date, the Hague Convention on the Taking of Evidence allows special instruments of law to prevail (Article 32 of the Hague Convention). However, in order to simplify further the taking of evidence, Member States are free to maintain such agreements, or to conclude new ones, on the condition, however, that they are compatible with the regulation. This probably implies that such agreements may not contain any rules that are more complicated than those in the regulation. Member States had to send to the Commission, also by 1 July 2003, copies of any of the agreements maintained on this basis. With respect to any agreements concluded in the future, a copy of the draft must be made available to the Commission. Additionally, Member States must inform the Commission if these agreements are denounced or amended. The Commission must also include this information in the manual.

In addition to drawing up the manual, the Commission is obliged to update or make any technical adjustments required to the standard forms attached to the regulation (Article 19(2)). In accordance with Article 20, the Commission is supported in this task by an advisory committee pursuant to Articles 3 and 7 of Decision 1999/468/EC⁹. In addition, the Commission has to submit a report on the application of the regulation in 2007 and every five yearsPage 214 thereafter to the Parliament, the European Economic and Social Committee and the Council (Article 23). In order to make this possible, the courts of the Member States are required to inform either the Commission directly, or the central body of its Member State, of any problems which arise in the application of the regulation. Only in this way will it be possible to ascertain after some time how the regulation is actually working.

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(Acts whose publication is obligatory)

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 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 ¹⁰,

Having regard to the opinion of the European Parliament ¹¹,

Having regard to the opinion of the Economic and Social Committee ¹²,

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 a broad 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 ¹³. It is therefore necessary to continue the improvement of cooperation between courts of Member States in the field of taking of evidence.

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.

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(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 data¹⁴, 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 ¹⁵, 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 1999¹⁶ 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.

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(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

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.
A request shall not be made to obtain evidence which is not intended for use in judicial proceedings, commenced or contemplated.
In this Regulation, the term 'Member State' shall mean Member States with the exception of Denmark.

Article 2 Direct Transmission Between the Courts

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.
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

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.
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.
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

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,

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- 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.
The request and all documents accompanying the request shall be exempted from authentication or any equivalent formality.
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

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.
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

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.
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

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.

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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

The requested court shall execute the request without delay and, at the latest, within 90 days of receipt of the request.
The requested court shall execute the request in accordance with the law of its Member State.
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.
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

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.
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.
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.
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.
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

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.
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.
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.

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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.
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

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.
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.
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.
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

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.
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.

Page 221
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.
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 videoconfer-ences and teleconferences.
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.
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

The execution of the request, in accordance with Article 10, shall not give rise to a claim for any reimbursement of taxes or costs.
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.
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

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.
The updating or making of technical amendments to the standard forms set out in the Annex shall be carried out in accordance with the advisory procedure set out in Article 20(2).

Article 20 Committee

The Commission shall be assisted by a Committee.
Where reference is made to this paragraph, Articles 3 and 7 of Decision 1999/468/EC shall apply.
The Committee shall adopt its Rules of Procedure.

Article 21 Relationship With Existing or Future Agreements or Arrangements Between Member States

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.

Page 222
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.
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;

(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

This Regulation shall enter into force on 1 July 2001.
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.

Done at Brussels, 28 May 2001.

For the Council

The President

T. BODSTRM

------------------------------------

[1] OJ L 174, 27.6.2001, p. 1. Articles referred to without any further indication of the legal source from this regulation.

[2] OJ C 314, 3.11.2000, p. 2.

[3] This convention applies to all Member States with the exception of Austria, Belgium, Greece and Ireland.

[4] Owing to its special institutional status in the sphere of cooperation in civil matters, Denmark is not regarded as a Member State for the purposes of the regulation (Article 1(3)). As regards Denmark, therefore, the existing international treaties will continue to apply for the time being.

[5] Last consolidated version (OJ C 27, 26.1.1998, p. 1).

[6] See Case 29/76 LTU v Eurocontrol [197 6] ECR 1541, Case 814/79 Netherlands v Rffer [1980] ECR 3807, and Case C-172/91 Sonntag v Waldmann [1993] ECR I-1963.

[7] OJ L 12, 16.1.2001, p. 1.

[8] 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 (Article 3(2)).

[9] OJ C 38, 6.2.2001, p. 3.

[10] OJ C 314, 3.11.2000, p. 2.

[11] Opinion delivered on 14 March 2001 (not yet published in the Official Journal).

[12] Opinion delivered on 28 February 2001 (not yet published in the Official Journal).

[13] OJ L 160, 30.6.2000, p. 37.

[14] OJ L 281, 23.11.1995, p. 31.

[15] OJ L 24, 30.1.1998, p. 1.

[16] OJ L 184, 17.7.1999, p. 23.

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Taking of Evidence

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