Initiative of the Federal Republic of Germany with a view to adopting a Council Regulation on cooperation between the courts of the Member States in the taking of evidence in civil and commercial matters

(2000/C 314/01)

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,

Having regard to the opinion of the European Parliament,

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

Whereas:

(1) The Union has set itself the objective of maintaining and developing the 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 must 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) In accordance with the principles of subsidiarity and proportionality as set out in Article 5 of the Treaty, the objectives of this Regulation cannot be sufficiently achieved by the Member States and can therefore be better achieved by the Community. 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 abroad in civil or commercial matters applies between only eleven 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 or perform other judicial acts in another Member State, the Community's activity cannot however 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 service in the Member States of judicial and extrajudicial documents in civil or commercial matters(1). It is therefore necessary to apply the principles governing that Regulation to other fields, in particular to the taking of evidence, to ensure not only the introduction of a rapid transnational procedure in all Member States, but also and above all the most rapid and simple implementation and conclusion of proceedings in a civil or commercial matter pending in a Member State.

(8) Measures for assistance in enforcement which fall within the scope of Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings(2) and that of the 1968 Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil or Commercial matters(3) as amended by the Accession Agreements(4) should nevertheless be excluded from the scope of this Regulation.

(9) The most rapid conclusion of judicial procedures in civil or commercial matters requires that the transmission and execution of requests for the performance of a judicial act be made directly and by the most rapid means possible between Member States' courts. It must, however, be possible for Member States to indicate their intention of designating only one transmitting or receiving agency or one agency to perform both functions for a period of five years. The designation may, however, be renewed every five years.

(10) Speed in transmission of requests for the performance of a judicial act 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 a judicial act 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 cours.

(11) A request for the performance of a judicial act must be executed expeditiously. If it is not possible for the request to be executed within two months of receipt by the requested court, the latter shall inform the requesting court accordingly, stating the reasons which prevent the request from being executed swiftly.

(12) To secure the effectiveness of this Regulation, the possibility of refusing to execute the request for the performance of a judicial act should be confined to strictly limited exceptional situations.

(13) This Regulation prevails over the provisions applying to its field of application, contained in international conventions 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. Member States shall be free to adopt agreements or arrangements to expedite or simplify cooperation in the taking of evidence, provided that such agreements or arrangements are compatible with this Regulation.

(14) The information transmitted pursuant to this Regulation should enjoy protection. This matter is dealt with by 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 data(5), 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(6).

(15) The measures necessary for the implementation of this Regulation should be adopted in accordance with Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission(7). The relevant measures should also include drawing up and updating a manual using appropriate modern means.

(16) No later than three years after the date of entry into force of this Regulation, the Commission should review its application and propose such amendments as may appear necessary.

(17) In accordance with Articles 1 and 2 of the Protocol annexed to the Treaty on European Union and to the Treaty establishing the European Community on the position of the United Kingdom and Ireland, these Member States shall not take part in the adoption of this Regulation, which is consequently neither binding upon, nor applicable to, them.

(18) In accordance with Articles 1 and 2 of the Protocol annexed to the Treaty on European Union and to the Treaty establishing the European Community on the position of Denmark, that Member State shall not take part in the adoption of this Regulation, which is consequently neither binding upon, nor applicable to, it,

HAS ADOPTED THIS REGULATION:

CHAPTER I

GENERAL PROVISIONS

Article 1

Scope

1. This Regulation shall apply in civil and commercial matters where the court of a Member State, in accordance with the provisions of the law of that State, requests the competent court of another Member State to obtain evidence or perform some other judicial act (hereinafter referred to as "judical act") except the service of judicial or extrajudicial documents and measures for the preservation of evidence or enforcement.

2. A request may not be made for the taking of evidence which is not intended for use in judicial proceedings pending before the requesting court.

3. The taking of evidence should not as a rule be requested when the court of a Member State wishes inquiries to be conducted by an expert in another Member State. In such cases the expert may be appointed directly by the court of that Member State without any prior consent or notification of the other Member State being required.

Article 2

Direct transmission between the courts

1. Requests pursuant to Article 1(1) (hereinafter referred to as "requests") shall be transmitted by the court before which the proceedings are pending (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 a judicial act.

2. Each Member State shall draw up a list of the courts competent for the performance of judicial acts. The list shall also indicate the territorial jurisdiction of those courts.

Article 3

Transmitting and receiving agencies

1. By way of derogation from Article 2, each Member State may designate:

(a) a court or other authority as transmitting agency competent for the transmission of requests to another Member State;

(b) a court or other authority as receiving agency competent for the receipt of requests from another Member State and the forwarding thereof to the requested court;

(c) a court or other authority to perform both functions referred to in (a) and (b). 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 such transmitting or receiving agency.

2. Where a transmitting or receiving agency has been designated, the communications pursuant to Article 8(1), Article 9, Article 10(1), Article11(2), Article 13(4) and Article 14(1) and (2) shall nevertheless be transmitted directly between the requesting and requested courts.

3. Designations pursuant to paragraph 1 shall have effect for a period of five years and may be renewed at five-year intervals.

Article 4

Central authority

1. Each Member State shall designate a central authority responsible for:

(a) supplying information to the courts and, where appropriate, transmitting agencies;

(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 or, where appropriate, a transmitting agency, a request to the competent court.

2. 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 authority.

CHAPTER II

TRANSMISSION AND EXECUTION OF REQUESTS

Article 5

Form and content of the request

1. The request shall be made using form A in the Annex. It shall contain the following details:

(a) the requesting and the requested court and, where appropriate, the transmitting and receiving agency;

(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 judicial act to be performed;

(e) where the request is for the examination of a person:

- the names and addresses of the persons to be examined,

- the questions to be put to the persons to be examined or a statement of the facts about which 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,

- any requirement that the examination is to be carried out under oath or affirmation in lieu thereof, and any special form to be used;

(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 11(2) and any information necessary for the application thereof.

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

3. Documents which the requesting court deems it necessary to enclose for the execution of the request shall be accompanied by a translation, where appropriate, into the language in which the request was written.

Article 6

Language

1. The request shall be drawn up in the official language of the Member State of the requested court 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 judicial act 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 Union other than its own which is, or are, acceptable to it for completion of the form.

2. Communications pursuant to Articles 8, 9, 10, 11, 13, 14 and 15 shall be drafted in the same language as the request.

Article 7

Transmission of requests and other communications

1. Requests and communications pursuant to Articles 8, 9, 10, 11, 13, 14 and 15 shall be transmitted by the swiftest possible means. The transmission of requests 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 without more ado.

2. Communications pursuant to Articles 8, 9, 10, 11, 13, 14 and 15 shall be transmitted as swiftly as possible.

Article 8

Receipt of request

1. Within seven days of reciept of the request, the requested 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 Article 6 and Article 7(1), the requested court shall enter a note to that effect in the acknowledgement of receipt.

2. Where receiving agencies pursuant to Article 3 have been set up, they shall forward an interim report to the requesting court or, where appropriate, transmitting agency, if the request has not been forwarded to the requested court within seven days of receipt by the receiving agency.

3. Where the execution of the request made using form A in the Annex, which complies with the conditions laid down in Article 6, 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 or, where appropriate, the transmitting agency thereof using from C in the Annex. The competent court shall send the requesting court an acknowledgement of receipt pursuant to paragraph 1 using form D in the Annex.

4. Where receiving agencies pursuant to Article 3 have been set up and the transmission of a request made using form A in the Annex which complies with the conditions laid down in Article 6 does not fall within the territorial jurisdiction of the receiving agency to which it was transmitted, the latter shall forward the request to the receiving agency with territorial jurisdiction of its Member State and shall inform the requesting court or, where appropriate, the transmitting agency thereof using form C in the Annex. The receiving agency with territorial jurisdiction shall send the requesting court or, where appropriate, the transmitting agency an interim report pursuant to paragraph 2.

Article 9

Incomplete request

If a request cannot be executed because it does not contain all of the necessary information pursuant to Article 5, the requested court shall inform the requesting court thereof within two weeks of receipt of the request using form E in the Annex and shall request it to send it the missing information, which should be indicated as precisely as possible.

Article 10

Notification of delays

1. If the requested court is not in a position to fulfil the request within two months of receipt, it shall inform the requesting court thereof, using form F in the Annex; when it does so, the grounds for the delay shall be given as well as the estimated amount of time that the requested court expects that it will need to fulfil the request.

2. If the requested court has noted on the acknowledgement of receipt pursuant to Article 8(1) that the request does not comply with the conditions laid down in Article 6 and Article 7(1) or has informed the requesting court pursuant to Article 9 that the request cannot be executed because it does not contain all of the necessary information pursuant to Article 5, the time limit pursuant to paragraph 1 shall not begin to run until a new request has been received.

Article 11

Execution of the request

1. The requested court shall execute the request in accordance with the law of its Member State.

2. 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. 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 if to observe such procedure is impossible by reason of the legal practice and procedure in the Member State of the requested court or by reason of 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 G in the Annex.

3. The special procedures within the meaning of paragraph 2 include sound and image recordings using modern communications technology.

4. The presence of representatives of the requesting court and of the Parties at the execution of the request pursuant to Article 14 does not constitute a special procedure within the meaning of paragraphs 2 and 3.

Article 12

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 internal 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 13

Refusal to execute

1. 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.

2. Beyond the grounds referred to in paragraph 1, the execution of a request may be refused only to the extent that:

(a) the request does not fall within the scope of this Regulation (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 9 within six weeks after the requested court asked it to do so.

3. Execution may not be refused solely on the ground that under the law of its Member State the requested court claims the exclusive jurisdiction of a court of its Member State over the subject matter of the action or that its internal law would not admit the right of action on it.

4. If execution of the request is refused for one of the grounds referred to in paragraphs 1 and 2, the requested court shall notify the requesting court thereof within four weeks of receipt of the request by the requested court using form H in the Annex.

Article 14

Presence of representatives of the requesting court and of the parties

1. Representatives of the requesting court may be present at the performance of the judicial act by the requested court. The requested court shall notify the requesting court immediately, using form I in the Annex, of the date and place scheduled for performance of the requested judicial act. If the requesting court wishes its representatives to present at the performance of the requested judicial act it shall immediately inform the requested court using form J in the Annex.

2. The parties and, where appropriate, their representatives may likewise be present at the performance of the requested judicial act by the requested court unless the law of the Member State of the requested court does not allow such as possibility for the execution of a request made for the same purpose by a national authority or party. As soon as the information pursuant to paragraph 1 has been sent to the requesting court, it shall forward it to the parties; it shall also inform the requested court immediately using form J in the Annex that the parties or their representatives wish to be present at the performance of the judicial act.

3. If both the requested and the requesting courts have the necessary technical means available and if the method for executing the request lends itself thereto, so as to facilitate the participation of the requesting court and of the parties, modern communication technology may be used, in particular by organising video conferences.

Article 15

Procedure after execution of the request

The requested court shall send to the requesting court or transmitting agency the documents establishing the execution of the request. The documents should be accompanied by a confirmation of execution using form K in the Annex.

Article 16

Costs

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

2. Nevertheless, the requested court shall have the right to claim that the requesting court reimburse the costs occasioned by the use of a special procedure requested by the requesting court under Article 11(2).

CHAPTER III

FINAL PROVISIONS

Article 17

Implementing rules

The measures necessary for the implementation of this Regulation relating to the matters referred to below shall be adopted in accordance with the advisory procedure referred to in Article 18(2):

(a) drawing up and annually updating a manual containing the information provided by Member States in accordance with Article 21;

(b) updating or making technical amendments to the standard forms set out in the Annex.

Article 18

Committee

1. The Commission shall be assisted by a committee.

2. Where reference is made to this paragraph, the advisory procedure set out in Articles 3 and 7 of Decision 1999/468/EC shall apply.

3. The committee shall adopt its Rules of Procedure.

Article 19

Relationship with existing or future agreements or arrangements between Member States

1. 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.

2. This Regulation shall not preclude individual Member States from maintaining or concluding agreements or arrangements further to expedite or simplify the execution of a request for the performance of judicial acts, provided that they are compatible with this Regulation. Such agreements or arrangements may also provide for diplomatic officers or consular agents or commissioners of a Member State to be entitled to perform judicial acts without coercive measures in another Member State in connection with proceedings pending before a court of their Member State.

3. Member States shall send to the Commisison:

(a) 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

(b) any denunciation of, or amendments to, these agreements or arrangements.

Article 20

Data protection

1. Information, including in particular personal data, transmitted under this Regulation shall be used by the requested court and the receiving agency only for the purpose for which it was transmitted.

2. Requested courts and receiving agencies shall ensure the confidentiality of transmitted information, in accordance with their national law.

3. Paragraphs 1 and 2 shall not affect any data subject's right under the relevant national law to be informed of the use made of data transmitted under this Regulation.

4. This Regulation shall be without prejudice to Directives 95/46/EC and 97/66/EC of the European Parliament and of the Council.

Article 21

Communication and publication

1. Each Member State shall communicate to the Commission the following:

(a) the list pursuant to Article 2(2) or, where appropriate, the names and addresses of the receiving agencies pursuant to Article 3, indicating their territorial jurisdiction;

(b) the names and addresses of the central authorities pursuant to Article 4 indicating their territorial jurisdiction;

(c) the technical means for the receipt of requests available to the courts on the list pursuant to Article 2(2) or, where appropriate, to the receiving agencies pursuant to Article 3;

(d) the languages accepted for the drafting of requests (Article 6).

Member States shall inform the Commission of any subsequent changes to this information.

2. The Commission shall publish the information pursuant to paragraph 1 in the Official Journal of the European Communities.

Article 22

Review

No later than three years after the date of entry into force of this Regulation, 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 effectiveness of the bodies designated pursuant to Article 3 and to the practical application of Article 4(1)(c).

Article 23

Entry into force

This Regulation shall enter into force on ...(8).

This Regulation shall be binding in its entirety and directly applicable in all Member States in accordance with the Treaty establishing the European Community.

Done at ...

For the Council

The President

...

(1) OJ L 160, 30.6.2000, p. 37.

(2) OJ L 160, 30.6.2000, p. 1.

(3) OJ L 299, 31.12.1972, p. 32.

(4) OJ L 204, 2.8.1975, p. 28, OJ L 304, 30.10.1978, p. 1, OJ L 388, 31.12.1982, p. 1, OJ L 285, 3.10.1989, p. 1, OJ C 15, 15.1.1997, p. 1.

(5) OJ L 281, 23.11.1995, p. 31.

(6) OJ L 24, 30.1.1998, p. 1.

(7) OJ L 184, 17.7.1999, p. 23.

(8) One year after adoption of this Regulation.

ANNEX

FORM A

Request for the taking of evidence or performance of another judicial act (Article 5 of Council Regulation (EC) No .../2000 of ... on cooperation between the courts of the Member States in the taking of evidence in civil and commercial matters)

>PIC FILE= "C_2000314EN.000802.EPS">

>PIC FILE= "C_2000314EN.000901.EPS">

FORM B

Acknowledgement of receipt of a request for the taking of evidence or performance of another judicial act (Article 8(1) of Council Regulation (EC) No .../2000 of ... on cooperation between the courts of the Member States in the taking of evidence in civil and commercial matters)

>PIC FILE= "C_2000314EN.001001.EPS">

FORM C

Notice of forwarding of request for the taking of evidence or the performance of another judicial act to the competent court or receiving agency (Article 8(3) and (4) of Council Regulation (EC) No .../2000 of ... on cooperation between the courts of the Member States in the taking of evidence in civil and commercial matters)

>PIC FILE= "C_2000314EN.001101.EPS">

>PIC FILE= "C_2000314EN.001201.EPS">

FORM D

Acknowledgement of receipt by the competent court to the requesting court or transmitting agency (Article 8(3) of Council Regulation (EC) No .../2000 of ... on cooperation between the courts of the Member States in the taking of evidence in civil and commercial matters)

>PIC FILE= "C_2000314EN.001301.EPS">

FORM E

Request for the addition of information to a request for the taking of evidence or performance of another judicial act (Article 9 of Council Regulation (EC) No .../2000 of ... on cooperation between the courts of the Member States in the taking of evidence in civil and commercial matters)

>PIC FILE= "C_2000314EN.001401.EPS">

FORM F

Notice of delay (Article 10 of Council Regulation (EC) No .../2000 of ... on cooperation between the courts of the Member States in the taking of evidence in civil and commercial matters)

>PIC FILE= "C_2000314EN.001501.EPS">

FORM G

Notification of special procedure or method to be followed when executing the request (Article 11(2) of Council Regulation (EC) No .../2000 of ... on cooperation between the courts of the Member States in the taking of evidence in civil and commercial matters)

>PIC FILE= "C_2000314EN.001601.EPS">

FORM H

Notice of refusal to execute a request for the taking of evidence or performance of another judicial act (Article 13(4) of Council Regulation (EC) No .../2000 of ... on cooperation between the courts of the Member States in the taking of evidence in civil and commercial matters)

>PIC FILE= "C_2000314EN.001701.EPS">

FORM I

Notification of the date, time and place of performance of the requested judicial act (Article 14(1) of Council Regulation (EC) No .../2000 of ... on cooperation between the courts of the Member States in the taking of evidence in civil and commercial matters)

>PIC FILE= "C_2000314EN.001801.EPS">

FORM J

Presence of commissioners of the requesting court and the Parties at the performance of the requested judicial act (Article 14(1) and (2) of Council Regulation (EC) No .../2000 of ... on cooperation between the courts of the Member States in the taking of evidence in civil and commercial matters)

>PIC FILE= "C_2000314EN.001901.EPS">

FORM K

Confirmation of execution of the request (Article 15 of Council Regulation (EC) No .../2000 of ... on cooperation between the courts of the Member States in the taking of evidence in civil and commercial matters)

>PIC FILE= "C_2000314EN.002001.EPS">