Taking of evidence and mode of proof - Community law
A practical and quick procedure for taking evidence within the European Union
Often it is not sufficient to have a claim against another party for actually winning your case because the other party contests the facts on which you have based the claim. Therefore it is usually crucial to present evidence to the court to prove your claim. To do so, it may be necessary to take evidence in a Member State other than the one in which you are resident. For example, it may be necessary to hear witnesses in other Member States, or the court may have to visit a scene of occurrence situated in another Member State.
If you want to have evidence taken in a Member State other than the one in which you are resident, you will have to go through a chain of intermediaries.
In 2001 the European Union adopted a Regulation laying down procedural rules to make it easier to take evidence in a different Member State. This Regulation has entered into force throughout the Union on 1st January 2004, except in Denmark, which does not take part in this area of Community cooperation.
This is the main content of the Regulation
- The regulation applies in civil and commercial cases where a court of a Member State requests the competent court of another Member State to obtain evidence. The regulation creates a new system of direct and rapid transmission and execution of requests for the performance of taking of evidence between courts. Each Member State must draw up a list of the courts competent for the performance of taking evidence. This information is made available by the Commission in a manual.
- Representatives of the requesting court and the parties may be present at the performance of the judicial act by the requested court. If this is not possible, modern communications technology, and in particular, videoconferencing, may be used to facilitate their participation.
- The regulation also provides for the possibility of direct taking of evidence by the requesting court in another Member State.
- The Regulation lays down precise criteria regarding the form and content of the request. The request must be made using a specific form, and must contain certain details, such as the name and address of the parties to the proceedings, the nature and subject matter of the case, a description of the taking of evidence to be performed, etc.
- The Regulation stipulates that the request must be drawn up in one of the official languages of the Member State of the requested court, or in another language which the requested Member State has indicated it can accept.
- 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.
- The possibility of refusing to execute the request for the performance of taking of evidence is confined to strictly limited exceptional situations.
A study on the application of the Regulation has been accomplished in March 2007. Based on the findings of this study, the Commission adopted a report in December 2007.
The report has been prepared in accordance with Article 23 of the Regulation. It concludes that the application of the Regulation has generally improved, simplified and accelerated the cooperation between the courts on the taking of evidence in civil or commercial matters. The Regulation has achieved its two main objectives, namely firstly to simplify the cooperation between Member States and secondly to accelerate the performance of the taking of evidence, to a relatively satisfactory extent. Simplification has been brought about mainly by the introduction of direct court-to-court transmission (although requests are still sometimes or even often sent to central bodies), and by the introduction of standard forms. As far as acceleration is concerned, it can be concluded that most requests for the taking of evidence are executed faster than before the entry into force of the Regulation and within 90 days as foreseen by the Regulation. Consequently, modifications of the Regulation are not required, but its functioning should be improved. In particular in the current period of adaptation which is still ongoing, there are certain aspects concerning the application of the Regulation which should be improved.
- 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 on the Taking of evidence
- Report on the application of the Council Regulation (EC) 1206/2001 (COM/2007/0769 final)
- Study on the application of Council Regulation (EC) N°1206/2001, on cooperation between the courts of the Member states in the taking of evidence in civil or commercial matter (PDF File 897 KB)
Annex I - Full answers received (PDF File 502 KB)
Annex III - Questionnaires (PDF File 546 KB)
- User guide "Taking of evidence" (PDF 217 KB)
- Judicial Atlas - Taking Evidence
- Preparatory documents and archives (PDF file 64 KB)
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