Taking of evidence
In cross-border proceedings, it is often essential for a decision in a civil or commercial matter pending before a court in an EU country to take evidence in another EU country.
A European system of direct and rapid transmission
The 'Regulation on cooperation between the courts of EU countries in the taking of evidence in civil or commercial matters [97 KB] ' has created a European system of direct and rapid transmission and execution of requests.
This should improve the performance of taking evidence between courts.
The Regulation is applicable in all EU countries except Denmark. With respect to Denmark, the Hague Convention on the taking of evidence abroad in civil or commercial matters' is applicable. However, not all EU countries have acceded to this Convention.
The Regulation provides for two means of taking evidence in another EU country:
- the court before which a case is heard in one EU country can request the competent court of another EU country to take the necessary evidence; or
- it can instead, take evidence directly in another EU country.
The Regulation is based on the principle of direct transmission between the courts, in which the requests for taking evidence are transferred directly from the 'requesting court' to the 'requested court'.
Each EU country has drawn up a list of the courts competent to take evidence according to the Regulation. This list also indicates the territorial jurisdiction of those courts.
In addition, each EU country has designated a central body responsible for supplying information to the courts and seeking solutions to any difficulties arising in respect of a request.
About the Regulation
How to request that evidence be taken
The Regulation lays down precise criteria regarding the form and content of the request, and provides specific forms in the annex:
- the requested court must take the evidence expeditiously and, at the latest, within 90 days of receiving the request. Where this is not possible, the requested court must inform the requesting court accordingly and state the reasons;
- a request for the hearing of a person will not be made when this person claims the right to refuse to give evidence. The law of the EU country of the requested court or the law of the EU country of the requesting court may also refuse to give it. Otherwise, a request to take evidence may only be refused in a few exceptional circumstances.
How to take evidence
In its request for the taking of evidence, the requesting court has to state whether the parties to the proceedings and/or their representatives will be present or are requested to be present.
The 2 courts take part in the process:
- the requested court will execute the request in accordance with the law of its EU country. The taking of evidence can also be executed in accordance with a special procedure provided for by the law of the EU country of the requesting court, if the latter calls for this procedure;
- the receiving court has to comply with such a requirement unless this procedure is incompatible with the law of its EU country.
The Regulation states that taking evidence may be done by making use of modern communications technology, and in particular by using teleconference and videoconference.
A request for the direct taking of evidence must be submitted to the central body or competent authority of the other EU country. It can be refused only in exceptional circumstances.
Direct taking of evidence may only take place where this can be carried out on a voluntary basis without the need for coercive measures.
It is carried out by a member of the judicial staff or by any other person, such as an expert who has been designated in accordance with the law of the EU country of the requesting court.