Order;Information — ECLI:EU:C:2022:678
Date: 2022-09-08
Language of the case: Polish
Court formation: Tenth Chamber
Subject matter: Area of freedom, security and justice;Judicial cooperation in civil matters
Procedure: Reference for a preliminary ruling
Origin: Poland

Summary C-188/22 – 1 
Case C-188/22 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
11 March 2022 
Referring court: 
Sąd Okręgowy w Opolu (Poland) 
Date of the decision to refer: 
24 February 2022 
Appellant: 
VP 
Respondent: 
KS 
Subject matter of the main proceedings  
Proceedings before the national court concerning the establishment of paternity 
and related claims. 
Subject matter and legal basis of the request 
The subject matter of the question referred for a preliminary ruling is the 
interpretation of Article 1 of Regulation No 1206/2001, in conjunction with 
Article 17 thereof, in the context of the possibility for a court to take evidence 
using a method provided in its national procedural law, and not in that regulation. 
Question referred for a preliminary ruling 
‘Must Article 1 of 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, in conjunction with Article 17 thereof, be interpreted 
as meaning that a court which intends to examine a witness resident in another 
Member State, must always, in the context of such evidence, use the methods 
provided for in that regulation, or is it entitled to use a method provided for in its 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-188/22 
 
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national procedural law, such as examining a witness in writing or by video-
conference without the assistance of a receiving agency, and thus without 
obtaining permission from the central body or competent authority of the Member 
State addressed? 
Provisions of international law relied on 
Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, 
done at The Hague on 18 March 1970 (Dz.U. 2000 No 50, item 582): Article 17. 
Provisions of European Union law relied on 
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 (OJ 2001 L 174, p. 1): recitals 2 and 15, Articles 1 and 17. 
Provisions of national law relied on 
Ustawa z dnia 17 listopada 1964 r. – Kodeks postępowania cywilnego (Law of 
17 November 1964 establishing the Code of Civil Procedure) (Dz.U. 1964 No 43, 
item 296): Article 2711, Article 274(1), Articles 276, 304 and 515, and 
Article 11352. 
Ustawa z dnia 2 marca 2020 r. o szczególnych rozwiązaniach związanych z 
zapobieganiem, przeciwdziałaniem i zwalczaniem COVID-19, innych chorób 
zakaźnych oraz wywołanych nimi sytuacji kryzysowych (Law of 2 March 2020 
on special solutions to prevent, combat and control COVID-19, other infectious 
diseases and crisis situations caused by them (Dz. U. 2020, item 374; the ‘Law on 
Covid’): Article 15zzs1. 
Succinct presentation of the facts and procedure in the main proceedings 
1 In a judgment delivered on 28 April 2021, the Sąd Rejonowy w Kędzierzynie-
Koźlu (District Court, Kędzierzyn-Koźle, Poland) inter alia removed from the 
defendant VP parental authority over the minor applicant KS and ordered VP to 
pay KS an amount of PLN 700 a month by way of maintenance. 
2 In the grounds for its decision, the Sąd Rejonowy stated that, when establishing 
the facts, it had relied on all the evidence gathered in the case and the findings 
made were, in its view, coherent and unambiguous. 
3 At the same time, pursuant to Article 2352(1)(2) and Article 2352(2) of the Code 
of Civil Procedure (the ‘CCP’), the evidence-related requests made by the 
VP 
 
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defendant VP for examination of the witness SP and for examination of the 
defendant as a party, and also his request for the establishment of facts at the 
District Employment Office in Kędzierzyn-Koźle concerning job offers made to 
the mother of KS, were disregarded.  
4 Under Article 2352(1)(2) of the CCP, a court may in particular disregard evidence 
to prove a claim which is undisputed, irrelevant to the outcome of the case, or 
proven to be as claimed by the applicant. 
5 The requested witness and the defendant were to be examined to establish the 
financial and earning capacity of the defendant and his incapacity, but these 
uncontested facts are, in the view of the Sąd Rejonowy, clear directly from the 
content of the defendant’s pleadings and the documents with he submitted. The 
facts relating to the defendant’s income and earning capacity were not disputed by 
the applicant, nor were his expenses as confirmed by the content of the documents 
submitted. Information on the results of his IQ test were claimed to demonstrate 
the defendant’s living and personal situation. The fact that the applicant took up 
and carried on paid employment corresponding to her qualifications was 
demonstrated by her testimony, therefore establishing potential job offers at the 
District Employment Office in Kędzierzyn-Koźle was, in the view of that court, of 
no relevance to the outcome of the case. 
6 On another note, the Sąd Rejonowy stated that the defendant was awaiting 
examination by way of letter rogatory before a court in The Hague (the 
Netherlands), which – under the prevailing safety conditions (the Covid-19 
pandemic) – would undoubtedly entail a considerable delay in determination of 
the case and the possible factual inability of the parties’ agents to take part in 
those proceedings. The possible taking of evidence via video-conference was 
precluded by difficulties in providing an interpreter for those proceedings, the 
inability to provide a direct and confidential link between the agents, and the state, 
raised by the defendant, of his incapacity. 
The essential arguments of the parties in the main proceedings 
7 The defendant lodged an appeal against the judgment of the Sąd Rejonowy, 
seeking inter alia the admission and taking of evidence omitted by that court, that 
is to say evidence from the testimony of the witness SP and from the examination 
of the parties and the defendant, and seeking a request to be made to the District 
Employment Office in Kędzierzyn-Koźle for the information set out in the 
response to the claim. 
8 The defendant alleged that the contested judgment: 
1. infringes procedural law, that is to say Article 233 of the CCP, in that it 
makes an arbitrary and not a free assessment of the evidence gathered in the case 
and erroneous assumes, on that basis, that: 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-188/22 
 
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(a) parental authority cannot be exercised by the defendant on account of the 
permanent obstacle posed by the distance between the defendant’s place of 
residence and that of the minor KS, and consequently it is necessary to remove 
parental authority from the defendant, whereas: 
• the defendant wishes to be involved in the process of bringing up his son; 
• the mere fact that the defendant lives and works in the Netherlands does not 
make it impossible for him to be involved in the process of bringing up his son; 
• the Sąd Rejonowy disregarded evidence from the examination of the 
defendant and relied solely on the statements of the minor’s mother regarding the 
defendant’s relationship with his son and the relationship between the parties; 
(b) the defendant’s earning capacity enables him to pay the minor KS 
maintenance in the amount of PLN 700 a month, whereas it is apparent from the 
evidence gathered in the case that the defendant is an incapacitated person and has 
limited earning capacity, and his monthly expenses are almost equal to the amount 
of the income which he receives; and 
2. infringes procedural law, that is to say Article 2352(1)(2) of the CCP, 
through its application and the disregarding of the evidence from the testimony of 
the witness SP and the examination of the defendant, and also the request made to 
the District Employment Office in Kędzierzyn-Koźle, whereas the evidence 
requested by the defendant has a significant bearing on the outcome of the case as 
regards the establishment of the defendant’s life and financial situation, his 
earning capacity and the earning capacity of the mother – statutory 
representative – of the minor KS. 
9 By order of 28 September 2021, the Sąd Okręgowy w Opolu (Regional Court, 
Opole) admitted the evidence from the examination of VP in writing as a party 
and SP as a witness regarding the financial and life situation and earning capacity 
and expenses of the defendant VP. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
10 The need to refer the question for a preliminary arose in connection with the 
introduction into the CCP on 7 November 2019 of broad scope for examining 
witnesses, and also parties, in writing, which had previously been allowed to a 
limited extent only in in non-contentious proceedings, and also with the entry into 
force of the Law on Covid which, in connection with pandemic, introduced the 
possibility of conducting remote hearings or the participation of parties and agents 
remotely in a conventional hearing. As a result of the entry into force of these 
instruments, the general courts began to make broad use of the two instruments, 
also in cross-border proceedings, which was very helpful in the context of the 
outbreak of the epidemic and the temporary restrictions on the operation of courts 
VP 
 
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in individual countries and the limited mobility of European Union residents as a 
result of border closures. 
11 The question referred in the present case was formulated against the background 
of evidence from examination in writing of a witness and a party resident in 
another EU Member State, but in the view of the Sąd Okręgowy this procedure for 
taking evidence is based on the same premisses as the procedure for the remote 
participation of a witness or party living abroad in a hearing held before a Polish 
court via video conference. The greatest controversy arose in connection with a 
second type of evidence, namely video conferencing without the agreement and 
participation of the authorities of the Member State in which the witness or party 
is living. In addition, if the Court of Justice were to find that evidence from a 
written examination were inadmissible, the Sąd Okręgowy, could, under the 
provisions of the CCP, alter the decision concerning evidence and examine the 
witness and the party via video conference with the participation of an interpreter. 
12 The general courts in the Republic of Poland applied the above methods of taking 
evidence contained both in the CCP and the Law on Covid, also with disregard to 
the provisions of Regulation No 1206/2001, and did not apply to the competent 
authorities of the other Member States for agreement to take evidence in writing 
or hold a remote hearing. However, on 3 November 2021 the Department of 
International Cooperation and Human Rights of the Ministry of Justice sent out a 
letter requesting that information on the rules of public international law 
applicable as a result of Polish courts holding remote hearings with the 
participation of persons living abroad pursuant to Article 15zzs1 of the Law on 
Covid be disseminated at the general courts. The author of the letter emphasised 
that that provision introduced remote sitting (or ‘remote hearing’) as the basic 
means of holding a hearing or public session. 
13 The Ministry further stated that it is commonly accepted that in an international 
legal relationship the taking of evidence with the participation a person living in 
the territory of another State (from the testimony of a party or witness or from an 
expert opinion) falls within the sovereignty of that other State and requires the 
agreement of the court having jurisdiction or the competent authority in that State, 
or their lack of opposition. That principle finds expression, for example, in 
Article 17 of Regulation No 1206/2001 or in the second sentence of Article 9 of 
the Convention on the Taking of Evidence Abroad in Civil or Commercial 
Matters, done at The Hague on 18 March 1970. Where there are no relevant 
Treaty provisions, the assessment of the permissibility of a foreign court directly 
taking evidence with the participation of a person who is living abroad is 
governed by the national law of the State where that person resides. 
14 In the view of the Sąd Okręgowy, the issue to which the question referred for a 
preliminary relates differs from that addressed by the Court of Justice in Lippens 
(C-170/11) since the subject matter of that case was merely the summoning of a 
party or witness for examination in other Member State, whereas the present case 
relates to the taking of evidence in the territory of another Member State without 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-188/22 
 
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the agreement of its authorities. It is true that in ProRail (C-332/11) the Court of 
Justice addressed this issue, but that case concerned different evidence. In 
addition, in view of the position of the Ministry of Justice, which sets out an 
interpretation of the provisions which is substantially different from that set out in 
the abovementioned decision, which is naturally not binding on the Sąd Okręgowy 
in this case, but points to the possibility of an infringement of the sovereignty of 
other Member States and the related reaction of the other Member States, which 
was probably behind the issuing of the letter described above, the issue in question 
needs to be determined definitively. Consequently, in the view of the Sąd 
Okręgowy, there is a need to consider the issue of the relationship between the 
provisions of EU law and the provisions of international and national law and the 
issue of State sovereignty understood as the exclusive right to administer justice in 
its territory. 
15 In the view of the Sąd Okręgowy, when considering the question at issue, it is 
necessary to examine paragraphs 43 to 49 of the judgment of the Court of Justice 
in ProRail (C-332/11). The Court of Justice held in particular that according to 
recitals 2, 7, 8, 10 and 11 in the preamble to Regulation No 1206/2001 the aim of 
the regulation is to make the taking of evidence in a cross-border context simple, 
effective and rapid. The taking, by a court of one Member State, of evidence in 
another Member State must not lead to the lengthening of national proceedings. 
That is why Regulation No 1206/2001 established a regime binding on all the 
Member States, with the exception of the Kingdom of Denmark, to remove 
obstacles which may arise in that field (see judgment of 17 February 2011 in Case 
C-283/09 Weryński, ECLI: ECLI:EU:C:2011:85, paragraph 62; and also the 
abovementioned judgment in Lippens and Others, paragraph 29). 
16 The Sad Okręgowy also noted that, as the Advocate General noted in 
paragraph 62 of his opinion in Case C-332/11 ProRail, Regulation No 1206/2001 
does not restrict the options to take evidence situated in other Member States, but 
aims to increase those options by encouraging cooperation between the courts in 
that area. An interpretation of Articles 1(1)(b) and 17 of that regulation according 
to which the court of a Member State is obliged, for any expert investigation 
which must be carried out directly in another Member State, to take evidence 
according to the method laid down by those articles would not be consistent with 
those objectives. In certain circumstances, it may be simpler, more effective and 
quicker for the court ordering such an investigation, to take such evidence without 
having recourse to the regulation. 
17 Finally, the interpretation according to which Regulation No 1206/2001 does not 
govern exhaustively the taking of cross-border evidence, but simply aims to 
facilitate it, allowing use of other instruments having the same aim, is supported 
by Article 21 of Regulation No 1206/2001 which expressly authorises agreements 
or arrangements between Member States to further facilitate the taking of 
evidence, provided that they are compatible with the regulation (Lippens and 
Others, paragraph 33). In paragraph 49 of its judgment in Case C-332/11, the 
Court of Justice held that a national court wishing to order an expert investigation 
VP 
 
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which must be carried out in another Member State is not necessarily required to 
have recourse to the method of taking evidence laid down in Articles 1(1)(b) and 
17 of Regulation No 1206/2001. 
18 It must be stated that, in so far as the expert designated by a court of a Member 
State must go to another Member State in order to carry out the investigation 
which has been entrusted to him, that might, in certain circumstances, affect the 
powers of the Member State in which it takes place, in particular where it is an 
investigation carried out in places connected to the exercise of such powers or in 
places to which access or other action is, under the law of the Member State in 
which the investigation is carried out, prohibited or restricted to certain persons. In 
such circumstances, unless the court wishing to order cross-border expert 
investigation foregoes the taking of that evidence, and in the absence of an 
agreement or arrangement between Member States within the meaning of 
Article 21(2) of Regulation No 1206/2001, the method of taking evidence laid 
down in Articles 1(1)(b) and 17 thereof is the only means to enable the court of a 
Member State to carry out an expert investigation directly in another Member 
State. 
19 Consequently, it must be concluded that where it is not necessary to use coercive 
measures or to perform actions for which an ordinary citizen of a Member State 
has to obtain the consent of the public authorities, a court of one Member State 
may take evidence in the territory of another. This may concern, for example, 
evidence from the examination of a witness or party in writing or by video 
conference or obtaining an expert opinion, consisting in, for example, the 
examination of a private car of one of the parties located on his or her premises in 
another Member State, to which both parties have consented. 
20 However, against the background of the 1970 Hague Convention, it is argued that 
any act of a court of one State in the territory of another constitutes an 
infringement of its sovereignty and requires the agreement of that State. This is 
indicated by Article 17 of that convention, the first paragraph of which provides 
that in a civil or commercial matter, a person duly appointed as a commissioner 
for the purpose may, without compulsion, take evidence in the territory of a 
Contracting State in aid of proceedings commenced in the courts of another 
Contracting State if a competent authority designated by the State where the 
evidence is to be taken has given its permission either generally or in the 
particular case and he complies with the conditions which the competent authority 
has specified in the permission. However, the second paragraph of that article 
provides that a Contracting State may declare that evidence may be taken under 
this Article without its prior permission. 
21 In the present case, the Kingdom of the Netherlands did not give its permission 
generally pursuant to the above second paragraph of Article 17 of the Hague 
Convention and designate the president of the regional court as the authorising 
authority. 
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22 In Poland, the jurisdictional sovereignty of the State is expressed in Article 1132 
of the CCP, which requires the courts of other States to obtain permission to take 
evidence in the territory of the Republic of Poland. In the light of the above, if a 
court of another Member State wished to hold a video conference with the 
participation of a person living in the territory of the Republic of Poland, or to 
examine such person in writing outside the scope of Regulation 1206/2001, it 
would, under Polish law, have to obtain the permission of a Polish court. 
23 When taking evidence as referred to in the question referred for a preliminary 
ruling, a further practical issue arises, namely that when setting a date for the 
hearing or ordering the taking of evidence in writing, the court taking the evidence 
has no certainty as to the State in whose territory the evidence will ultimately be 
taken since the witness or party concerned may be in the territory of third 
countries or outside the territory of the European Union, for example on holiday 
or on business. Then obtaining the agreement of the authorities of the place where 
the witness or the party is habitually resident will be ineffective and unnecessary 
since the evidence will be taken in the territory of a third country. Moreover, a 
situation may arise where a Polish court wishes to take evidence in the form 
described above, with the participation of a person who is habitually resident in 
the territory of the Republic of Poland who, however, during the taking of 
evidence will actually be living in the territory of another Member State about 
which the court admitting the evidence had no knowledge. In the latter situation, 
adopting the interpretation set out by the Ministry of Justice, the introduction of 
remote hearing as the basic means of holding a hearing, with no obligation or 
option to verify the place of residence of the party concerned during the 
proceedings, and thus to check whether the persons participating in it is not 
outside the Republic of Poland, may infringe its international obligation and 
infringe the sovereignty of other States. 
24 In summary, it appears to follow from the Hague Convention and the view 
expressed by the Ministry of Justice that in the absence of an international 
agreement, either bilateral or multilateral, the taking of evidence by a court of a 
Member State in another Member State must always in accordance with Article 17 
of Regulation No 1206/2001, and thus de facto, pending the conclusion of the 
relevant international agreements this provision is mandatory in nature and the 
courts of Member States must always obtain the permission of the State where the 
evidence is to be taken, even if it does not require the use of State coercion or the 
obtaining of special permission (in the sense of, for example, entering a closed 
area, as in ProRail) since otherwise they would infringe its sovereignty. This 
reasoning is, however, at odds with the ruling of the Court of Justice in Case 
C-170/11, Lippens, in which it held that Regulation No 1206/2001 applies as a 
general rule only if the court of a Member State decides to take evidence 
according to one of the two methods provided for by that regulation, in which case 
it is required to follow the procedures relating to those methods.