EUROPEAN COMMISSION Brussels, 31.5.2018 SWD(2018) 285 final COMMISSION STAFF WORKING DOCUMENT



IMPACT ASSESSMENT

Accompanying the document Proposal for a



REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

amending 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

{COM(2018) 378 final}

{SEC(2018) 271 final}

{SWD(2018) 284 final}



Table of contents 1. Introduction: Political and legal context 2. Problem definition 2.1. Problem tree 2.2. What are the problems? 2.2.1. Shortcomings in the protection of rights of defence and legal uncertainty 2.2.2. Delays and undue costs for citizens, businesses and public administrations 2.3. What are the problem drivers? 2.3.1. Preparation of the request and taking of evidence and transmission of the request 2.3.2. Decision about the validity of a request 2.3.3. Taking of evidence 2.3.4. Confirmation 3. Why should the EU act? 3.1. Legal basis 3.2. Subsidiarity 4. Objectives: What is to be achieved? 5. What are the available policy options? 6. What are the impacts of the policy options? 6.1. Assessment of the core options

6.1.1. Assessment of the options for the problem ‘method of taking evidence requested not available in the requested Member State’, e.g. video-conferencing’ 6.1.1.1. Option 1.1 6.1.1.2 Options 1.2 (a) and 1.2 (b) 6.1.2. Assessment of the options for the problems ‘‘Paper-based communication between courts is time-consuming and costly’, and ‘Legal barriers to the acceptance of electronic (digital) evidence produced or stored in another Member State’ 6.1.2.1 Option 2.1 6.1.2.2 Option 2.2 (a) and 2.2 (b) 6.1.2.3 Option 2.3 7. Combined effects of the preferred options as a package 7.1. Baseline scenario 7.2. Policy Package 7.3. Impacts on fundamental rights and the protection of personal data 8. Conclusion and Evaluation and Monitoring Framework 9. REFIT (simplification and improved efficiency) Annex 1: Procedural information Annex 2: Stakeholder Consultation Annex 3: Who is affected and how? Annex 4: Analytical methods Annex 5: Tables with assessment of options for problems Annex 6: Assessment of impacts of baseline scenario Annex 7: Assessment of impacts of policy package

Annex 8: Conclusions of the Evaluation of Regulation (EC) 1206/2001 ANNEX 9: Evaluation Report 1. Introduction 2. Background to the intervention 3. Implementation / state of Play 4. Method 5. Analysis and answers to the evaluation questions 6. Conclusions 1.Introduction: Political and legal context The EU has the task to develop the European area of justice in civil matters based on principle of mutual trust and mutual recognition of judgements. The area of justice requires judicial cooperation over the borders. For this purpose, and for the proper functioning of the internal market, the EU has adopted legislation on cross-border service of judicial documents and on cooperation in taking of evidence . These are crucial instruments to regulate judicial assistance in civil and commercial matters between the Member States. Their common purpose is to provide an efficient framework for cross-border judicial cooperation. They have replaced the earlier international, more cumbersome system of Hague conventions between the Member States . This legislation on judicial cooperation has a substantial impact on the everyday lives of EU citizens in their private capacity or business activity. It is applied in judicial proceeding having cross-border implications; its proper functioning in these concrete cases is indispensable for ensuring access to justice and a fair trial for the parties to the proceedings (e.g. the lack of proper service of the document initiating proceedings is by far the most often used ground for refusing the recognition and enforcement of judgments ). The efficiency of the framework of international judicial assistance has, therefore, a direct impact on the perception of the citizens involved in such cross-border disputes on the function of the judiciary and the state of the rule of law in the Member States. Smooth cooperation between courts is also a necessary ingredient for the proper functioning of the internal market. In 2018, there are in the European Union approximately 3.4 million civil and commercial court proceedings with cross-border implications. In many of these proceedings, the taking of evidence and service of documents in another Member State are of high importance for ensuring a proper administration of justice. The following numbers demonstrate the relevance of the Regulations: in the area of commercial law, the number of problematic transactions in business to consumer relations within the EU amounts to 18.6 million per year, whereas the number of cross-border disputes between EU businesses reaches a 1.2 million annually. In the area of family law, available figures relating to cross-border legal situations are also high: yearly 250.000 to 310.000 new international marriages are concluded in the EU, whereas the number of international divorces is between 100.000 and 140.000 . Up to 230.000 children are born every year to international couples within the EU and there are up to 588.000 successions with cross-border elements . This shows the importance of constant improvements in this area to make it easier for citizens and businesses to enforce their rights throughout the EU. The EU Justice Agenda for 2020 stressed that, in order to enhance mutual trust between the justice systems of the Member States of the EU, the need to reinforce civil procedural rights should be examined, for example as regards the taking of evidence. The aim of improving the framework of judicial cooperation within the EU is also in line with the objectives of the Commission set by the Digital Single Market Strategy : in the context of e-Government, the Strategy expresses the need for more actions to modernise public (including judicial) administration, achieve cross-border interoperability and facilitate easy interaction with citizens. In its Political Guidelines, President Juncker has defined the need for a better judicial cooperation among one of the 10 priorities of the Commission: "as citizens increasingly study, work, do business, get married and have children across the Union, judicial cooperation among EU Member States must be improved step by step... so that citizens and companies can more easily exercise their rights across the Union". In line with this, the Commission has committed in its work programme for 2018 to prepare proposals revising the Regulation on taking of evidence and the Regulation on service of documents. Council Regulation (EC) 1206/2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters is an important instrument for the European judicial cooperation given that it is often crucial to present sufficient evidence to the court to prove a claim. Regulation (EC) 1206/2001 establishes an EU-wide system of direct and rapid transmission of requests for the taking and execution of evidence between courts and establishes precise criteria as to the form and content of the request. In particular, the Regulation represents a big step forward to

The Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters. This latter is a multilateral treaty signed in The Hague on 18 March 1970, which establishes methods for provision of testimony and documents between a signatory state where evidence is sought and another signatory state where evidence is located, for use in judicial proceedings in the requesting state. The Convention provides for the taking of evidence by means of: letters of request and diplomatic or consular agents and commissioners. Evidence is obtained by issuing a letter of request to the designated central authority of the signatory state where the evidence is located. In contrast with this system, the Regulation -put in place a modern and efficient system of direct dealings between courts (transmission of requests and of re-transmission of the evidence taken), and replaced between Member States the cumbersome Hague system in which requests were transmitted from the court in Member State A to the central body in Member State A, then to the central body in Member State B and finally to the court in Member State B (and the same way back). It furthermore allows for the direct taking of evidence by courts in other Member States. This Impact Assessment was developed on the basis of the findings of the retrospective evaluation of Regulation (EC) 1206/2001 (with which it was developed back to back) – whose results are included in Annex E. It is also closely linked to the back to back Evaluation and Impact Assessment of Regulation (EC) No 1393/2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (service of documents) which was developed in parallel. The two initiatives are closely interlinked between themselves as they suggest similar options in relation to digitalisation for service of documents and taking of evidence as the two main pillars of judicial cooperation. They are also both closely linked to the overall Commission priority of digitalization and e-Justice and builds upon and benefits of already existing EU outputs and legal standards (e-CODEX, eIDAS Reg etc.). They further follow the suit of parallel work in the field of criminal justice in order to create a level playing field in the areas of criminal and civil justice alike. The Commission has recently adopted a proposal providing for a legislative framework on e-evidence, based on the Council's request in its June 2016 conclusions, for the Commission to develop a platform with a secure communication channel for digital exchanges of requests for electronic evidence under the Directive on the European Investigation Order. This initiative is also closely interlinked with e-CODEX, since Member State experts participating in the development of the platform reached the conclusion, after considering different options, that the e-CODEX system would be the most suitable system to be used for such an exchange of electronic evidence. A series of activities were launched to help evaluate the Regulation, through Commission studies and reports, as well as discussions within the European Judicial Network in civil and commercial matters (EJN): 2012: ·Study on the application of articles 3(1)(C) and 3, and articles 17 and 18 of the 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 (launched by the Commission, carried out by Mainstrat and the University of the Basque Country) – final report adopted in June 2012 ; 2013: ·20 November 2013: meeting of the EJN dedicated to the evaluation of the application of the Regulation on taking of evidence; 2014: ·Extensive questionnaire (containing more than 50 questions, prepared in collaboration with the EJN) to the Member States concerning the practical operation of the Regulation on taking of evidence. 2016: ·Study from a consortium led by University of Maribor (SI) which delivered a comparative analysis of the law of evidence in 26 Member States (through an action grant under the EU Justice Programme, finished in spring 2016 ) ·14-15 November 2016: dedicated meeting of the EJN addressing practical problems and possible improvements of the Regulation; 2017: ·A Commission study evaluating national procedural laws and practices in terms of their impact on the free circulation of judgments and on the equivalence and effectiveness of the procedural protection of consumers under EU consumer law (carried out by a consortium led by MPI Luxembourg, whose final report was delivered in June 2017 ). ·30 November – 1 December 2017, Tallinn: dedicated meeting of the EJN addressing practical problems and possible improvements of the Regulation. 2018:

·Broad scale on-line public consultation conducted by the Commission which received 131 replies. This list of evaluative activities was complemented by research and work carried out by the other institutions of the EU, as well as by external actors. In this respect, an own-initiative report was adopted by the European Parliament on 4 July 2017 on common minimum standards of civil procedure in the EU which contains provisions related to the acceptance of modern communication technology both for service of documents and for taking of evidence which would serve as a first step for convergence of national regulations concerning civil procedure in generalThe European Parliament’s report contains provisions related to the acceptance of modern communication technology both for service of documents and for taking of evidence; furthermore it proposes common minimum rules e.g. on the eligible means of substituted service of documents or on evidence taking through videoconferencing, or by court appointed experts. Demand for improvements, in particular in relation to digitalisation, has also been formulated by Member States in the evaluation of the Directive, amongst others in discussions in the European Judicial Network for civil and commercial matters but also in other for a. In particular, the Council Working Party on E-Law set up an expert group assessing issues of electronic service under the existing legal framework. The Working Party on e-Law led by FR has just finished its work and presented a draft report to the CWP. This document (WK 4519 2018 REV 1 of 24 April 2018) confirms in several points the existing obstacles to cross-border electronic service of documents under the current Regulation. It is also worth mentioning the ongoing ELI (European Law Institute) and Unidroit (International Institute for the Unification of Private Law) project "From Transnational Principles to European Rules of Civil Procedure" which involves specific work on service of documents and taking of evidence. 2.Problem definition 2.1.Problem tree The problems, their causes and effects are presented below by means of a problem tree, which serves to illustrate the problems faced by EU citizens and businesses due to current limitations or shortcomings in the Regulation, the causes of these problems and their effects. The issues identified at the bottom of the so-called ‘problem tree’ are considered to be the root causes/drivers of the problems that ensue for citizens. Ultimately, the problems have effects at the level of overarching EU objectives. The figure should thus be read from the bottom to the top. In the following sub-sections, each element of the problem tree is examined in further detail, starting with the causes/drivers of the problem and the resulting problems for citizens. It should be noted that the problems identified in this section are those which were evidenced in the parallel evaluation report on this Regulation. Both the evaluation and the impact assessment reports are based on data collected for both reports. Figure 1: Problem Tree Source: Deloitte 2.2.What are the problems? The main problems identified are shortcomings in the protection of rights of defence, legal uncertainty, and delays and undue costs for citizens and business. The identified shortcomings also lead to delays and undue costs for public administrations. 2.2.1.Shortcomings in the protection of rights of defence and legal uncertainty Legal uncertainty can be caused by diverging interpretations if and when the Regulation or other means in national law may be used in the current situation where the Regulation and national law sit alongside one another and courts can choose between them when they have to take evidence abroad. Legal certainty can also derive from diverging interpretations by national authorities of the terms "courts" under the Regulation and of what kind of judicial actions constitute "taking of evidence" under the Regulation. Currently, there is no streamlined interpretation of this concept among the Member States: some of them only consider traditional tribunals as covered, whereas others accept a more open approach and accept and execute requests coming from judicial authorities other than courts (notary publics, social welfare or guardianship authorities, enforcement authorities), if these are empowered by law to proceed in civil or judicial matters

In practice, these aspects may also cause stress, costs and delays for citizens, businesses, and public administrations. It is expected that this burden will increase in line with the expected increase of courts’ case load under Regulation (EC) 1206/2001 until 2030. 2.2.2.Delays and undue costs for citizens, businesses and public administrations All types of legal proceedings – in one form or another – put a burden on the parties involved, such as: ·Time taken to conclude the case; ·Court fees; ·Costs for legal advice; ·Travel costs and time taken to travel (e.g. to travel to a hearing); ·Fees for expert judgment; ·Costs for the translation of requests and/or evidence (e.g. testimonies) as well as interpretation; ·Stress related to the taking of evidence (including e.g. based on delays). Since all types of legal proceedings put a burden on the involved parties and stakeholders, it is important to avoid undue costs and delays. Hence, citizens and businesses do not suffer particularly from the problem of high costs and long delays per se – but from costs and delays that could have been avoided (and thus can actively be reduced). The evaluation has shown that there is room for improvement regarding the efficiency of the processes provided for under the Regulation (i.e. the relationship between its benefits and the burden it puts on stakeholders) to remove undue costs and delays within different types of legal proceedings. According to the most of the stakeholders consulted, most national courts in cross-border cases still avoid resorting to the Regulation and summon the witness or other person to be heard directly to the court. This predilection is caused not only by the sometimes difficult practical coordination between the courts involved, but also by concerns about the preservation of the principle of immediacy in the assessment of the evidence. Furthermore, the language issue appears recurrently: The need to translate the form (and the questions) into a language accepted by the requested Member States raises problems with the accuracy of the translation itself and with the costs. It has also demonstrated that the absence of the use of modern technology in the communication between entities is a key component of the problems in this area and stronger use holds significant potential for improvements. The length of the procedure is perceived to be a problem for citizens, businesses, and the public administration. More specifically, there is room for improvement with regard to delays and costs in relation to: ·Respecting the time limits of the Regulation; ·Using the means to conduct a hearing that are most suitable for each hearing under EU and domestic procedural law; and ·Use of paper-based communication outside of hearings. The extent to which these aspects are actual problems depends, however, on the specific legal proceedings at hand and can hardly be assessed across the board. The reason for this is that each legal proceeding is different and factors that may cause detriment in one legal proceeding may be perceived as irrelevant in another or even as positive at best (e.g. depending on the point of view of the involved parties). The time limits provided for under the Regulation are often not respected. This is something the European Commission already identified as an issue it its 2007 report on the application of the Regulation. Stakeholders, the online survey and (to some extent) also the open public consultation have reaffirmed that there is still room for improvement with regard to respecting the time limits today. 6 out of 7 stakeholders indicated in the online survey that civil or commercial cases involving the taking of evidence in other EU Member States take longer than six months (4 respondents indicated that the average length exceeds 12 months). This can be compared to the 90 days limit set by the Regulation. The current differences regarding delays of and costs for legal proceedings between Member States are due to the different domestic procedural law and administrative capacity.

Whereas in some Member States witnesses can be questioned (with prior consent) via tools such as Skype or even email, other Member States require that persons are physically present in the court. There are advantages and disadvantages to both approaches and neither one can be regarded as better than the other: The physical hearings can often be challenging to organise, as schedules of different stakeholders need to be aligned, court rooms need to be available, and the witness (or his / her representatives) need to show up in court. This may be a source of delays and costs within the process itself. However, physical hearings – compared to e.g. Skype hearings or even videoconferencing – can guarantee that the witness is (at least physically) free to give the testimony while the judge or judicial officers can connect to the person emotionally, better observe gestures and other non-verbal communication in order to steer the hearing within an appropriate direction. In that sense, it is important that judges and judicial officers need to use the means appropriate for a specific legal proceeding and find the appropriate balance between the two alternatives – especially since evidence may be harder to obtain in some cases than in others (e.g. in cases involving children or high profile commercial cases). Overall, the problems that the time limits of the Regulation are not respected, and that there are means to conduct a hearing that are more suitable for particular hearings than those covered by the Regulation are expected to remain relevant in the future. In addition, paper-based communication outside of hearings is also expected to remain of relevance. These problems are expected to cause citizens and businesses stress, delays, and costs in the future. Furthermore, there are differences between Member States with regard to the availability, and the potential and actual use of videoconferencing in courts. The use of videoconferencing has increased over the last years across Member States, in particular in Member States such as Portugal or Sweden. It has been estimated that between 2001 and 2017, on average, up to 3,600 hearings were held per annum via videoconference with videoconferencing being far less frequent in the early 2000s than today. The number of videoconferences is expected to increase until 2030 to up to 4,600 hearings per year on average (again, videoconferencing is expected to be more frequent in 2030 than today). It is also perceived as a problem that Member States are using different types of videoconferencing systems that are not necessarily interoperable from a technical and legal perspective today. These differences are expected to scale up until 2030. The costs for videoconferencing are expected to decrease incrementally over the next years – both in relation to one-off costs to procure the facilities, as well as in relation to recurrent costs to operate them (e.g. based on the costs incurred for sufficiently fast internet connections). It is, however, not clear how they will develop realistically. However, costs related to interpreting videoconferences, transcribing them, and translating the transcripts are not necessarily expected to decrease in the future compared to today. This will largely depend on the take-up and use by courts of Artificial Intelligence that can simultaneously translate and record oral speech. The increased take-up of videoconferencing is expected to increase challenges and practical problems to organisation and scheduling as it is already today a problem that videoconferencing facilities are largely pre-booked in advance and there is no capacity to take evidence on comparatively short notice. Thus, without the use of a smart booking system (at the national) level, challenges for the organisation of videoconferences will remain. The public consultation conducted by the Commission shows significant support for an increased use of video-conferencing: Figure 1: Source: Public consultation conducted by the Commission. 2.3.What are the problem drivers? 2.3.1.Preparation of the request and taking of evidence and transmission of the request The public consultation conducted by the Commission has shown that the Regulation which is used in a lot of cases with a substantial growth rate is considered a success by stakeholders and has provided EU added value. Only a minority of stakeholders considered the channels for taking evidence under the Regulation too cumbersome. A large majority of stakeholders stated that it does not pose any difficulty to decide when they apply the Regulation, as the figure below shows. Figure 2

Source: Public consultation conducted by the Commission There is, however, room for improvement with regard to several aspects: A cause of delays or additional costs is that communication between competent courts and authorities is to a large extent non-electronic. A majority of courts only accept paper-based requests via post or fax. Only six Member States accept requests via email in general and another five Member States accept emails for certain types of requests or communications. According to interviewees, email addresses are frequently not provided by the requesting court and may not be found by the requested court. Since this form of communication is not widely accepted, the process to rectify requests was reported to be time-consuming and “very frustrating” (as one central body explained). The only option in these cases is to return the request, which is seen as ineffective and considered a waste of time and resources. The European Union of Judicial Officers (UEHJ) admitted that e-Codex is an excellent tool for communication and it should be promoted. The Chamber Européen des Huissiers de Justice (CEHJ) supported the move towards electronic transmission of documents to be served or evidence, as it will allow rapid management of judicial cooperation. The Council of Bars and Law Societies of Europe stresses that in order to avoid different models being developed that it would like to see the e-CODEX infrastructure being used only in cross-border e-justice initiatives based on interconnection of judicial systems as well as communications by stakeholders in justice, such as servicing of documents or exchanging evidence. It also underlined that it would be very useful to have EU-wide minimum standards to ensure that national e-justice systems are able to guarantee rights to a fair trial. The public consultation of the Commission confirmed these findings, and the need for improvement:



Figure 3 Figure 4 Figure 5 Source: Public consultation conducted by the Commission Some experienced uncertainty whether the Regulation or other means in national law may be used. For instance, interviewees stated that its content and scope or the relationship to other instruments is not always clear, which contributes to legal uncertainty or delays. For example, the question has been raised by courts in Estonia when national methods for the takings of evidence may be used instead of those prescribed in the Regulation. A study carried out by the Max-Planck Institute Luxembourg in 2017 found that differences in national procedural rules on the taking of evidence may have led to refusals of requests to take evidence under the Regulation. Furthermore, such differences may have led to the non-recognition of judgments in the past, as courts used the possibility to object judgments based on public policy, if the standards of taking evidence were not in line with requirements under national law. This would be in conflict with the aim of facilitating smooth cross-border proceedings and a smooth recognition of judgments.

Several judges stated that their motivation to remain aware about the Regulation is low, given their high workload in domestic cases and the irregular occurrence of cross-border cases. This leads to a preference to apply other, more familiar instruments available under national procedural law also in cross-border cases. At the same time, a number of frequently used channels, such as taking of evidence through consular agents, or diplomatic officers are not explicitly acknowledged by the Regulation itself. However, methods under national procedural law were considered by some stakeholders to be “just as effective” in most cases. In addition, interviewees considered them at times more efficient to obtain the desired results. These findings tend to confirm that although the non-mandatory nature of the Regulation and the availability of national law as an alternative avenue for taking evidence abroad is not per se an obstacle to the efficiency of the overall system of cross-border taking of evidence in the EU and may even contribute to better performance by making available more efficient methods not included in the Regulation, this parallel structure also creates a number of problems. Another cause for legal uncertainty concerns the diverging interpretation of "courts" under the Regulation by the national authorities. The definition of requesting courts was reported to be interpreted very narrowly in some Member States. One stakeholder from Hungary explained that requests by notaries acting in a “court-like capacity” were not recognised in another Member State. A related cause of legal uncertainty and delays is the possibly diverging understanding of what kind of judicial actions constitute "taking of evidence" under the Regulation. For instance, the definition of the term “evidence” was raised as one of the main issues in the Commission’s report on the application of the Regulation. 2.3.2.Decision about the validity of a request One cause for delays (and ensuing costs for parties involved in proceedings) may be that no acknowledgement of receipt of a request from the requested court is received (or only with a delay). This concerns cases in which the taking of evidence through a competent court is requested and an acknowledgement of the receipt (using Form B) needs to be provided. According to interviewees, it is rarely returned within seven days, as stipulated by the Regulation. On the one hand, interviewees explained that this, for instance, is due to the time required for postal delivery – here again the lack of electronic communication has adverse impacts. On the other hand, interviewees mentioned instances where the internal processing of requests was not possible within the given time-frame. In cases, where direct taking of evidence is requested, no such confirmation of receipt is required. Instead, the central authority has to communicate within 30 days whether the request is accepted or refused. The obligation to obtain a prior authorisation of direct taking of evidence by the central authority was considered a potential cause of delays by some interviewees. Regardless of the channel for which the request was specified, the requesting courts can do nothing to ensure an effective and expedite processing (and execution) of requests, according to the interviewees. The Regulation specifies no consequences or further means to address this type of situations. 2.3.3.Taking of evidence Concerning the procedures, stakeholders often cited the example of direct taking of evidence via telephone or videoconferencing. In some Member States, these procedures are either not permitted or significant administrative or technical obstacles may cause delays. For instance, the availability of videoconferencing facilities or technical staff may be the bottleneck preventing a swift hearing. Delays or additional costs after a request were also caused if the requested method of taking evidence is not available in the requested Member State. This concerns contents and formats as well as the procedures to obtain evidence. For instance, several courts cited examples in which evidence in the form of social welfare reports could not be obtained in custody cases. Here, the need to find and prepare an adequate substitute (e.g. reformulate information needs into questions for a physical hearing) was mentioned as a cause of delays and additional costs. 2.3.4.Confirmation The use of modern technologies to communicate or exchange evidence electronically is still only permitted in few Member States. Likewise, interviewees reported legal barriers to the acceptance of electronic (digital) evidence produced or stored in another Member State. On the one hand, the concept of “electronic evidence” is not defined at all or defined in different ways in different Member States. On the other hand, the transmission of evidence in electronic forms is not always permitted, i.a. because methods to verify digital signatures are not yet known or used by most requesting or requested courts. In addition, some Member States may not accept electronic evidence based on security concerns, as data storage mediums from external sources could contain viruses or other harmful software. 3.Why should the EU act? 3.1.Legal basis The legal basis is Article 81 TFEU (judicial cooperation in civil matters having cross-border implications).Subparagraphs (b) and (d) of paragraph (2) of this Article grants the EU the power to adopt measures, particularly when necessary for the proper functioning of the internal market, aimed at ensuring the cross-border service of judicial and extrajudicial documents and the cooperation in taking of evidence. 3.2.Subsidiarity The aim of the policy area concerning judicial cooperation in civil matters has been always be to establish a genuine area of justice, where judicial decisions circulate and legal situations acquired under one legal system are acknowledged within the EU across borders without unnecessary obstacles. This approach is based on the conviction that without a genuine judicial area the underlying freedoms of the single market cannot be fully exploited.

The problems to be tackled by the initiative arise in cross-border judicial proceedings which by definition transcend the reach of national legal systems and stem either from the insufficient level of cooperation between the authorities and officers of the Member States, or from the lack of interoperability and coherence of the existing domestic systems and legal environment. Rules in the area of private international law are laid down in Regulations because that is the only way to ensure the desired uniformity of rules. While nothing prevents Member States in principle from digitalising the way they communicate, past experience and the projection of what will happen without EU action shows that progress be very slow and that even where Member States take action, inter-operability cannot be ensured without a framework under EU law. The objective of the proposal cannot be sufficiently accomplished by the Member States themselves and can therefore be only achieved at Union level. The EU added value lies in further improving the efficiency and speed of judicial procedures, by simplifying and accelerating the cooperation mechanisms with regard to the taking of evidence and thus improving the administration of justice in cases with cross-border implications. Comparing with the Hague system, that provides for the taking of evidence by means of: letters of request and diplomatic or consular agents and commissioners, the Regulation put in place a modern and efficient system of direct dealings between courts (transmission of requests and of re-transmission of the evidence taken). 4.Objectives: What is to be achieved? The policy objectives set out the political priorities and aims for action in the relevant field. They are an essential step of every impact assessment, including because they support the creation of a logical link between the identified problems and the solutions considered. Policy objectives are normally identified at the following levels: ·Operational objectives concern deliverables or objectives of actions; ·Specific objectives relate to the specific domain and set out what the Commission wants to achieve with the intervention in detail; and ·General objectives refer to Treaty-based goals and constitute a link with the existing policy setting. The following figure presents the policy objectives: Figure 6: Objectives Tree Source: Deloitte • The general objectives are to ensure the smooth functioning of the area of freedom, security and justice by strengthening the trust in the judicial systems of the Member States and the EU and safeguarding the fundamental rights in the EU, and. • The specific objectives are to further improve the efficiency and speed of judicial proceedings. The intervention should also reduce the burden for citizens and businesses involved in cross-border proceedings resulting from undue costs and delays, and reduce the level of legal uncertainty identified in course of evaluation of the Regulation. • The operational objectives are oto ensure that the most rapid means are used for the transmission and execution of requests for the taking of evidence, including modern technologies; oto ensure that requests for the taking of evidence are executed expeditiously; oto facilitate the direct taking of evidence.

5.What are the available policy options? For each problem driver, a range of options from non-legislative to different levels of ambition of legislation has been identified. Because of the multiplicity of issues and options this assessment is based on a distinction between the core options as the most important building blocks of an initiative and other less central options. To focus this document on the most essential elements the core options, the use of the e-codex and the use of videoconferencing are shown in the table and fully assessed below. The other options are entirely dealt with in AnnexV. Overview of the core options and options for each sub-problem identified Baseline Option 0 Non-Legislative Option 1 Legislative Option 2 Options Options 1. Method of taking evidence requested not available in the requested Member State, e.g. video-conferencing No policy change apart from what is already underway or currently planned 1.1. Awareness raising of courts on existing ways and procedures and examples of the benefits of using and accepting digital methods, as well as the adoption of electronic systems in courts Mixed legislative and non-legislative option 1.2 (a) Using VC, telephone-conferencing or other means of distant communication, as a rule, if a person needs to be heard from another MS (subject to availability of equipment at the court), unless the use of such technology, on account of the particular circumstances of the case, is not appropriate for the fair conduct of the proceedings. National law on the taking of evidence through VC in purely internal situations remains untouched. + 1.2 (b) Incentivise Member States to equip courts with VC facilities by co-financing some national projects for furnishing courts with equipment from EU programmes. 2. Paper-based communication between courts is time-consuming and costly, and 3. Legal barriers to the acceptance of electronic (digital) evidence produced or stored in another Member State No policy change apart from what is already underway or currently planned 2.1. Sharing of best practices between MS (designated authorities) on e-communication and electronic exchange of documents under the Regulation 2.2 (a) CEF eDelivery (eCodex) should be the default channel for electronic communication and document exchanges between the agencies/courts designated under Regulation (EC) 1206/2001 (as well as the Service Regulation). E-communication should replace, as a general rule, paper workflows. 2.2 (c) Specify in the Regulation that: (i) an evidence (e.g. declaration, testimony, authentic instrument) which is transmitted in form of electronic document through the appropriate communication system (see point 6)) should be considered as if it was transmitted in original (paper) version (ii) the quality of evidence may not be denied in a civil proceedings from a digital evidence which is produced and preserved (stored) in another MS in accordance with the laws of that MS 6.3 Obliging designated authorities/courts under the Regulation to use certified e-mails (furnished with qualified e-signatures) for their communications and exchange of the documents. 2.3. Obliging designated authorities/courts under the Regulation to use certified e-mails (furnished with qualified e-signatures) for their communications and exchange of the documents. Source: Deloitte 6.What are the impacts of the policy options? This chapter presents the assessment of impacts of the individual options. It starts with an assessment of the options proposed for all high-priority issues. The preferred options are then combined into a “Preferred Policy Option”, which is assessed against the baseline scenario (Option 1). This section includes the assessment of the options proposed for all problems identified in the problem assessment. The different options are assessed using the following common assessment criteria: Assessment Criteria for assessment of the options Criterion Examples of elements to consider Effectiveness: (i.e. extent to which the options address the policy objectives) ·Potential of the options to achieve the key policy objectives, in particular: oTo reduce legal uncertainty oTo further improve the efficiency and speed of judicial proceedings oTo improve access to justice and the protection of the procedural rights of parties to the proceedings oTo reduce the burden from undue costs and delays for citizens and businesses involved in cross-border proceedings. Efficiency (i.e. cost-benefit balance) ·Main cost factors for various (public and private) stakeholders ·Main benefits for various stakeholders Proportionality (i.e. extent to which the options are in line with what is needed to achieve the policy objectives) ·Assessment of whether the option goes further than what is needed, based on: oScope of the option oType of instrument proposed (e.g. hard law vs. soft measures) The assessment tables, organised per problem to be addressed, are presented in Annex A. As a consequence of this "high-level" assessment, for all specific problems we retain one option which received the highest ranking among the options addressing the same problem. The combination of these retained options will compose the preferred "Policy Package", for which a detailed assessment (including a cost-benefit analysis, and analysis of various other impacts) will be carried out, in line with the Better Regulation Guidelines of the Commission. The results of the assessment for the Preferred Policy Package can be summarised as follows: Problems Option 1. Uncertainty when the Regulation shall be used or other means in national or European law may be used (non-mandatory application of the Evidence Regulation) and 5. The ways of cross-border taking of evidence in the Regulation are often more cumbersome and slower than the means available in national law or other EU instruments 1.3 (a)Defining other means of cross-border taking of evidence in the Regulation in addition to the existing two ways: acknowledging the ways supported by the CJEU as legitimate means under the Reg.: (i) direct examination of facts in MS B by experts appointed by courts in MS A in accordance with the procedural rules of MS A, insofar this activity does not affect the sovereign powers of MS B > see C-332/11 ProRail (ii) summoning foreign persons directly to the trial court (but whenever possible, VC should have priority) > see C-170/11 Lippens and others + 1.3 (b) Regulate the taking of evidence through diplomatic officer or consular agent as a specific way of taking of evidence under the Reg., in line with relevant provision of the 1970 Hague Convention 2. Diverging interpretation of “courts” under the Regulation by the national authorities 2.4. (a) Replacing 'courts' in Art 1 with 'judicial authorities' + 2.4. (b) Providing a general definition of 'judicial authorities' (similarly to the Succession Regulation or the Maintenance Regulation) 3. Diverging understanding what kind of judicial actions constitute a “taking of evidence” under the Regulation 3.2 (a) Completing Art 1 'taking of evidence' with 'and other judicial acts' 4. Method of taking evidence requested not available in the requested Member State, e.g. video-conferencing 4.2 (a) Using VC, telephone-conferencing or other means of distant communication, as a rule, if a person needs to be heard from another MS (exceptions possible, including subject to availability of equipment at the court), unless the use of such technology, on account of the particular circumstances of the case, is not appropriate for the fair conduct of the proceedings. National law on the taking of evidence through VC in purely internal situations remains untouched. + 4.2 (b) Incentivise Member States to equip courts with VC facilities through financing national projects for furnishing courts with equipment from EU programmes. 5. The ways of cross-border taking of evidence in the Regulation are often more cumbersome and slower than the means available in national law or other EU instruments 5.1 (a) Communicating the importance of the uniform standards provided by the Regulation (streamlined procedures, equal standard of protection of the right of the parties involved). + 5.1 (b) Best practices for competent courts to help them to apply the procedures properly and without delay. + 5.1 (c) Awareness raising to courts and other legal professionals of the availability of the direct channel of taking evidence under Art. 17. 6. Paper-based communication between courts is time-consuming and costly, and 7. Legal barriers to the acceptance of electronic (digital) evidence produced or stored in another Member State 6.2 (a) CEF eDelivery (eCodex) should be the default channel for electronic communication and document exchanges between the agencies/courts designated under the Evidence Regulation (as well as the Service Regulation). E-communication should replace, as a general rule, paper workflows. + 6.2 (c) Specify in the Regulation that: (i) an evidence (e.g. declaration, testimony, authentic instrument) which is transmitted in form of electronic document through the appropriate communication system (see point 6)) should be considered as it was transmitted in original (paper) version (ii) the quality of evidence may not be denied in a civil proceedings from a digital evidence which is produced and preserved (stored) in another MS in accordance with the laws of that MSs 8. Delays in the execution of a request by the requested court 8.2 (b) Implementing technical measures ensuring automatic and/or manual logging of the steps of the workflow. Horizontal Updating of existing guidance material and awareness raising of the changes. 6.1.Assessment of the core options In order to focus this document on the most essential elements, respectively the use of the e-codex and the use of videoconferencing, they will be assessed below. 6.1.1.Assessment of the options for the problem ‘method of taking evidence requested not available in the requested Member State’, e.g. video-conferencing’ As it was stressed by the evaluation report, the use of videoconferencing can simplify the interactions in cross-border judicial cooperation. Videoconferencing facilities can, for instance, be used to find the right balance between the challenges to organise a physical hearing and being able to safeguard the freedom of the witness’s testimony (e.g. if an official in-court videoconferencing system is used). However, the evaluation report concluded that there are differences between the Member States with regard to the availability, potential, and actual use of such systems in courts:

6.1.1.1. Option 1.1 Option 1.1. Awareness raising of courts on existing ways and procedures and examples of the benefits of using and accepting digital methods, as well as the adoption of electronic systems in courts Effectiveness Awareness raising of courts could include the development of printed material (i.e. flyers) and digital content (Word and Power Point, as well as website content) that could be published physically, via the eJustice portal, or e.g. as part of larger communication packages to courts.Raising the awareness of courts of digital tools to take evidence across borders is expected to contribute to the improvement of the efficiency and speed of judicial proceedings. Increased awareness could, for example, have a positive effect on the supply and demand of digital tools such as VC, which, in turn, is expected to lead to an increased take-up of such facilities in practice. Courts that are already in possession of VC facilities are expected to use them increasingly frequent and courts that do not yet possess VC facilities are expected to be more likely to invest in the necessary technical equipment. Hence, the extent of the benefits would be dependent on the take-up by courts, including the possibility for the courts to set aside a budget to acquire the relevant equipment. Depending on the number of courts that actually invest in VC facilities and its actual use in practice, this could result in reduced costs and delays for citizens and businesses.It should be kept in mind, however, that supply and demand are not the only determinants of VC use in legal proceedings. Although VC facilities may be available for use in a specific legal proceeding, it may not necessarily be the most fitting solution for every case or all stakeholders directly involved in the case to actually use it. Efficiency Overall, raising courts’ awareness is considered a pragmatic way to improve the take-up of VC compared to the Baseline Scenario. There are, however, constraints of time, resource and reach. The costs for the awareness raising activities are dependent on the exact scope, means and target groups of the activities. It can be expected that the organisation of these activities would be procured by the Commission. Experience-based estimates show that the implementation of awareness raising activities targeting a comparatively limited audience can at least cost one million Euro if implemented in all 28 Member States (depending of course on the types of channels, frequency of communication, level of information etc.). Considering that there are approx. 82,000 professional judges in the EU , which could all be handling a cross-border case, costs could be up to around 2 million Euro, if each individual would be targeted directly .In addition, courts are expected to invest in VC facilities as a result to the awareness raising activities. Interviewees indicated that the acquisition, implementation, and operation of professional, high-end VC equipment (e.g. similar to those used by the Commission in their larger conference rooms) could cost as much as 90,000 Euro – depending on the type of systems and its functionalities (e.g. number of microphones, cameras, extent to which the system is smart and can track conversations by zooming in on attendees that currently use the microphone). This estimate seems to be very high. Prices available online show that approx. 3,000 Euro per month could be a more realistic estimate. This means that annual costs per court could be in the range of 36,000 Euro. According to CEPEJ 2014, there are 6,000 courts in the EU of which a limited number already has VC facilities. Thus, if all courts were to be equipped with one VC facility – which is still unlikely – costs could be as high as 216 million Euro across all Member States, i.e. on average 8 million Euro per Member State. There could be similarly high costs for the replacement of the current system after a couple of years of maintenance.Thus, the extent to which this option is efficient overall (i.e. across all stakeholders, incl. public authorities) depends on the extent to which costs and delays that can be saved in legal proceedings exceed the overall costs of the implementation of awareness raising regarding digital tools. Moreover, it depends on the extent to which costs and delays can be saved in comparison to domestic means to take evidence across borders that often include costs to travel to the court in another Member State. Thus, awareness raising is not necessarily an efficient option for public authorities. However, it is expected that awareness activities raising is an efficient option to reduce the costs and delays for citizens and businesses. Proportionality The option is overall proportionate. However, this option is not considered to go beyond what is needed to achieve the policy objectives. It is, however, not fully clear at this stage to what extent the Member States are not better equipped to promote the use of VC facilities compared to the Commission. They have a better understanding about their national systems, the availability of VC facilities, as well as their practical functioning than the Commission. This is of particular importance for larger Member States such as Germany in which VC is not even used to the full extent possible in domestic procedures. Therefore, it is considered proportionate for the Commission to act in unison with the Member States. The option may impose a relatively small budgetary burden on the Commission for (procuring) the development and implementation of the awareness raising activities. Secondary costs, born by the Member States, however, could be significant. The take-up is, however, voluntary and the VC equipment acquired could also be used for domestic cases. To conclude, while the type of action does not go beyond what is necessary to address the problem. It would, however, not fully address the problem and the Member States could be better placed to lead the activities. Conclusion Awareness raising activities are expected to provide a limited improvement compared to the Baseline Scenario. Although the awareness raising activities are expected to contribute to achieving the policy objectives, the extent to which the benefits exceed the costs is ambiguous. Moreover, Member States may be better equipped than the Commission to 6.1.1.2 Options 1.2 (a) and 1.2 (b) Options 1.2 (a) and 1.2 (b) : Using VC, telephone-conferencing or other means of distant communication, as a rule, if a person needs to be heard from another Member State (subject to availability of equipment at the court), unless the use of such technology, on account of the particular circumstances of the case, is not appropriate for the fair conduct of the proceedings. National law on the taking of evidence through VC in purely internal situations remains untouched + 1.2 (b) Incentivise Member States to equip courts with VC facilities by co-financing some national projects for furnishing courts with equipment from EU programmes Effectiveness The availability of technical infrastructure is the backbone of effectively using VC facilities across borders. This could lead to an increased take-up of direct methods to take evidence across borders under the Regulation. Moreover, incentivising Member States to equip courts, e.g. through funding from the EU budget for national projects, can be – given appropriate procedural flexibility – an effective option to further improve the efficiency and speed of judicial proceedings, as well as to reduce the burden from undue costs and delays for citizens and businesses involved in cross-border proceedings. This is in particular valid as costs to equip courts with high-end VC facilities could be around 8 million Euro on average per Member State (see option 4.1 under efficiency). At this stage, it is not clear what the hearing of a person in another Member State through “VC, telephone-conferencing or other means of distant communication means as a rule” entails and to what extent this is flexible (e.g. to adapt it to the circumstances of a specific case). This would need to be specified further with the Commission, e.g. in relation to:

·Definition of “other means distance communication means” apart from VC and telephone-conferencing (e.g. email, Skype, WhatsApp, Facebook); ·Definition of “as a rule” and the notable exceptions, which would need to allow courts to adapt the proceeding to the specifics of a case (e.g. lack of consent, cases in border regions, or hearing of small children) ·Administrative processes through which deviations can be justified and the associated burden for courts. Efficiency Incentives for Member States, e.g. through funding national projects from the EU budget, is a proven and efficient means to accelerate the take-up of technical solutions in the Member States.For instance, eCODEX was funded over six years with an EU budget of 12 million Euro. An additional 12 million Euro was made available by the Member States.It is expected that the funding for VC equipment would cost considerably less than the funding for eCODEX.The use of VC or other distance communication systems by default is considered to be less costly per case than e.g. travelling abroad. While cross-border travel can be around 20% more expensive than domestic travel based on research, the absolute amount of costs associated with operating VC facilities is expected to be marginal. There can, however, considerable one-off costs associated with VC which, in turn, could balance the efficiency of VC compared to travel, depending of course on the specific circumstances of the legal proceedings. Moreover, the efficiency of this option depends on the extent to which the “rule” of VC and telephone-conferencing is flexible and can be adapted to the circumstances of each case (e.g. involving children), as well as the extent to which courts have a burden to justify the grounds based on which the deviate from the rule and e.g. still summon a person to court Proportionality Option 1.2 (b) is not considered to go beyond what is needed to achieve the policy objectives and is considered to be proportionate. Some questions, however, need to be clarified with regard to option 1.2 (a). More specifically, the specific grounds based on which a justified deviation from the rule to use distant communication is possible would need to be clarified. It seems at this stage that deviation is only possible in case appropriate equipment is not available in court. In this regard, legal professionals consulted have commented that VC and other distance communication means are not necessarily most appropriate under the specific circumstances of each legal proceeding or, for instance if in particular VC equipment is available within reasonable time in order not to delay a proceeding. Both options create a financial and administrative cost for the national governments, as well as regional or local authorities. It is not fully clear that these costs will be commensurated with the objectives to be achieved. Conclusion This option addresses the lack of VC equipment by means of providing for funding for Member States. This is a crucial prerequisite to improve the take-up direct methods to take evidence across borders, e.g. by using VC in legal proceedings.There are, however, costs associated with this option for the EU as well national, regional, and local authorities.Moreover, the use of VC may not always be the most appropriate solution in all cases.At this stage, it is not clear if the option to use VC, telephone-conferencing or other means of distant communication as a rule is appropriate for all legal proceedings and an efficient / proportionate approach. 6.1.2.Assessment of the options for the problems ‘‘Paper-based communication between courts is time-consuming and costly’, and ‘Legal barriers to the acceptance of electronic (digital) evidence produced or stored in another Member State’ As is was stressed in the evaluation report, there are obstacles related to delays and costs for businesses and citizens caused by the failure to exploit the potential of modern technologies for speedier communication and direct taking of evidence. The most striking examples in that regard are the lack of use of electronic communication in exchanges between the authorities and courts of Member States which are still very predominantly paper-based on the one hand and the only marginal use of electronic communication for the direct taking of evidence, in particular videoconferencing. The uptake of modern technologies is not currently an obligation under the Regulation itself, but depends entirely on individual efforts in Member States to introduce modern technologies in the judiciary and the overall move towards digitisation, and this has led to very slow progress in absolute terms but also in comparison to the use of modern technologies in domestic settings. 6.1.2.1 Option 2.1 Option 2.1: Sharing of best practices between MS (designated authorities) on e-communication and electronic exchange of documents under the Regulation Effectiveness The option is expected to be effective in addressing the problem, however only to a very limited extent. While the sharing of best practices in theory bears the potential for improving and standardising procedures for communication and exchange of documents, the effect may only be achieved with considerable delay (as e-communication systems need to be updated, adapted or procured). In addition, procedural law and court infrastructures differ at the national level and legal barriers or data security concerns may nevertheless inhibit voluntary action based on best practices. As a result, this option may lead to adoption of best practices in some cases but not on a large scale. The option is therefore not effective in improving the overall speed and efficiency of procedures under the Regulation. Likewise, competing systems (paper-based and electronic) could increase legal uncertainty. The burden for citizens and businesses are not expected to decrease significantly.

The option is efficient, since collecting and presenting best practices could be facilitated via existing repositories of information and communication (e.g. the eJustice portal). However, several aspects might lower the efficiency of this option in the short run, as costs for changing systems are borne by competent courts and legal practitioners, who might pass on part of the costs via fees. In the end, if Member States choose to act based on best practice examples, benefits for citizens and businesses include timesavings, while courts are likely to recover initial investments at least partially. Proportionality The option is proportionate. It does not go beyond what is needed to address the problems and as simple as possible to address the problems at hand. It leaves scope for national decisions on whether to update systems and how Conclusion The option is effective to a limited extent, depending on whether best practices lead to changes in communication between courts and increased acceptance of electronic evidence in practice. The option is efficient, as the costs to share best practices are likely to be low, compared to potential benefits from courts adopting and integrating best practices to communicate using electronic means and accept digital evidence.At the same time, it is proportionate, as the proposed instrument is simple and does not go beyond what is needed to address the problems. 6.1.2.2 Option 2.2 (a) and 2.2 (b) Option 2.2 (a) and 2.2 (b) CEF eDelivery (eCodex) should be the default channel for electronic communication and document exchanges between the agencies/courts designated under Regulation (EC) 1206/2001 (as well as the Service Regulation). E-communication should replace, as a general rule, paper workflows. +2.2 (b) Specify in the Regulation that: (i) an evidence (e.g. declaration, testimony, authentic instrument) which is transmitted in form of electronic document through the appropriate communication system (see point 6)) should be considered as it was transmitted in original (paper) version and (ii) the quality of evidence may not be denied in a civil proceedings from a digital evidence which is produced and preserved (stored) in another MS in accordance with the laws of that MSs. Effectiveness The option would be effective in addressing the problem compared to the situation under baseline. Establishing the CEF eDelivery as the default channel for electronic communication ensures the use of electronic communication to coordinate ToE or transmit evidence obtained under the Regulation. This would increase the speed and efficiency of services. At the same time, this could reduce the burden for citizens and businesses in proceedings (e.g. costs due to delays). Ensuring the equal treatment and evidentiary value of electronic evidence (and electronic communication overall) to the paper-based system expected under the baseline scenario is an important pre-condition for effectiveness. Legal certainty, speed and efficiency of judicial proceedings increase if the content of communication (i.e. electronic evidence), and not just the act of communicating is to be electronic. Efficiency The efficiency of this options is moderate to high, depending on the time-horizon of the assessment. The initial, one-off investment costs for the system can be regarded as high. However, apart from maintenance and updates, the marginal cost for each instance of communication is negligible and faster than the use of postal services (likely to be used under the baseline scenario). Using postal services, the costs are incurred at every instance of communication, and likely to increase in line with the number of cross-border cases. Thus, costs and benefits of this option have to be have to be weighted. In the long run, benefits. Whereas the costs for costs for postal services are incurred by courts in the Member States, the new portal would be to a large extend be developed at the EU-level. It needs to be clarified further, who finances the tool and its maintenance. Given the use of existing portals and depending on the complexity of the tool, the development costs will likely to be lower than the development of the e-Codex portal itself (24 Mil. EUR). In any case, costs at the national level may be expected for staff training and adapting of institutional routines to use the new tool. It is important to note, that the cost in operation would be largely determined by the extent, to which the tool would be integrated into existing systems. At the national level, efficiency gains may be reduced, if existing IT systems need to be adapted or the time required to transfer communication between the newly established tool and any existing national tools. At the EU level, the costs It is assumed that the tool could also be used for other EU instruments (such as the Service Regulation), which has positive implications for the efficiency. Proportionality The option is proportionate, but a final assessment would depend on the clarification on the financing of the tool. The scope of the initiative is limited to what Member States could not achieve themselves, implementing a new EU-wide tool. It does not go beyond what is needed to address the problem, as it only concerns communication under the Regulation.However, the principle of accepting electronic forms of evidence limits the room for national decisions on matters of procedural law. Overall, there is a justification for the option if as paper-based communication. Conclusion The option would be effective in addressing the problem compared to the baseline scenario. It would reduce paper-based communication, increasing speed and efficiency of legal proceedings in which the Regulation is applied. At the same time, excluding the possibility to reject evidence on the basis that it is electronic could greatly reduce the burden for citizens and businesses to provide requested evidence. The efficiency of this options is moderate to high, depending on the time-horizon of the assessment. While initial one-off costs are high and implementation is expected to take time, the marginal cost for transmitting requests and documents would be negligible. In addition, the tool could be adopted in further EU-instruments, which would increase its efficiency. The option is proportionate, but a final assessment would depend on the clarification on the financing of the tool. 6.1.2.3 Option 2.3

Option 2.3: Obliging designated authorities/courts under the Regulation to use certified e-mails (furnished with qualified e-signatures) for their communications and exchange of the documents. Effectiveness The option will reduce paper-based communication, including related costs for postage or printing. This could speed up communication and efficiency of judicial proceedings under the Regulation. As a result, the overall duration of proceedings under the Regulation and ensuing burdens for citizens and businesses is likely to decrease. Efficiency The option is considered to be moderately efficient. While the use of email was reported to be widespread among courts, in particular for informal communication, the use of qualified e-signatures is not yet common. Thus, even if electronic identification frameworks, such as eIDAS, are currently developed by the European Union, few Member States have the infrastructures or experience in place to facilitate qualified e-signatures within public administration and the judiciary. Thus, the costs to implement the technical infrastructure in courts are likely to be high and would be borne by the Member States. Benefits for courts include decentralised network of identification among legal professionals. Proportionality The option is not proportionate. While the cases in which the Regulation is applied only constitute a small share of all cases, the courts would have to adapt their existing IT systems and communication procedures to comply with the option. This would greatly influence the room for national solutions for overall communication within the judicial system. Thus, although the option would effectively address the problem identified for the procedures under the Regulation, it would go beyond what is needed to address it. Conclusion The option would be effective in reducing paper-based communication and thereby help to speed up legal proceedings. This could lead to decreasing burdens for citizens and businesses. At the same time, the option is only moderately efficient. The one-off cost to implement an interconnected system facilitating electronic signatures at every competent court is considered high, compared to the number of cases in which the regulation is applied. Likewise, the option is not considered proportionate, as it goes beyond what is needed to address the problem while the costs are borne by the Member States alone. 7.Combined effects of the preferred options as a package As a next step, first the baseline scenario and then the preferred policy package are assessed in relation to the following five criteria: ·Effectiveness; ·Efficiency; ·Coherence; ·Impacts on fundamental rights and the protection of personal data; ·Environmental impacts. 7.1.Baseline scenario First, the baseline scenario is assessed in relation to these five criteria (in the next sub-section, the policy package selected is in turn assessed).

The detailed assessment is included in Annex B. Criteria Assessment Rating Summary Effectiveness 0 The effectiveness would be limited as the challenges identified in relation to the application of the Regulation are likely to continue to exist. On this basis, problems for citizens and businesses will persist, which limits the achievement of the policy objectives. In particular, there will still be uncertainty on when to apply the Regulation and concerning the concepts of courts and taking of evidence. Delays and costs (e.g. based on failure to keep the time limits or to choose the most appropriate means to take evidence) are expected to remain at an equal level per case and increase at an overall level in line with the overall increase of cases. Efficiency, incl. impacts on national judicial systems 0 From a more narrow perspective, in the baseline scenario the Regulation is expected to increase the efficiency of legal proceedings as taking of evidence is governed by a flexible regime under which the most appropriate means to take evidence in each specific legal proceedings can be used. Some room for improvement, however, remains e.g. with regard to the share in which the Regulation will be used in the future. Although this does not necessarily mean that other cross-border legal proceedings in which the Regulation will not be applied are expected to be inefficient, the non-mandatory nature will arguably contribute to legal uncertainty for public authorities, legal professionals, citizens, and businesses. Coherence 0 The Regulation is largely coherent internally, as well as with other EU policy instruments, which have similar objectives, and national law. Small challenges, including based on overlaps with the Brussels IIa Regulation and difficulties relating to the relationship to national law, would persist without any policy action. Impacts on fundamental rights and the protection of personal data 0 The evaluation revealed that legal practitioners, citizens and businesses currently face legal uncertainty and delays in proceedings when the Regulation is applied. As a result, the current Regulation does not fully ensure access to justice and the use of the most effective remedy in judicial proceedings, when it comes to ToE across borders. These issues are expected to persist under the baseline scenario in the future. At the same time, it is not expected to exert any impacts on the future protection of personal data. Environmental impacts 0 Environmental impacts of the Regulation under the baseline scenario are mainly related to paper-based communication or effects from travelling to attend physical hearings/summons. The magnitude of this impact per case is expected to remain roughly stable (depending on innovations in communication via postal services or passenger travel). The overall environmental impact of the Regulation is expected to increase in line with the projected number of cases in which it is applied. Average rating and conclusion 0 Under the baseline scenario, the problems identified in the problem assessment, including in relation to costs and delays, would be likely to continue where the Regulation is applied.. 7.2.Policy Package Criteria Assessment Rating Summary Effectiveness +2 Under the policy package, the effectiveness in achieving the policy objectives would increase compared to the baseline scenario: ·Legal uncertainty would be reduced through a number of clarifications and additions (e.g. the definition of additional channels to take evidence and clarification of the concepts of court and taking of evidence), as well as through new awareness raising and guidance material. ·The efficiency of cross-border judicial proceedings would be improved, which would lead to a lower burden for citizens and businesses. A number of measures would help to reduce delays, including certain clarifications, the strengthening of electronic communication and videoconferencing as well as additional guidance and awareness raising. ·Access to justice and the protection of the rights of the parties would be improved, including through the reduction of delays and because the number of cases in which the Regulation would be applied is expected to increase. Risks relating to electronic communications and videoconferencing, e.g. relating to confidentiality, would need to be addressed. Efficiency, incl. impacts on national judicial systems +2 The implementation of the policy package is considered to be more efficient than the baseline scenario: ·The implementation of the policy package is associated with comparatively high initial investments (i.e. capital investments, CAPEX) for public authorities that could be co-financed by the European Commission. Moreover, recurring operational expenditures (OPEX) are expected to be incurred by public authorities for the maintenance of the necessary hard- and software. Detailed information in this regard is available in section 2.1.1 of Annex C. As regards the annual costs per court for the acquisition, implementation, and operation of professional, high-end VC equipment (which is the largest part of the costs), costs are estimated to be in the range of 36,000 Euro. There are about 6,000 courts in the EU, of which a limited number has already VC facilities. If all courts were to be equipped with one VC facility which appears unlikely, costs could amount to 216 million Euro in the EU. ·The investment into technical infrastructure and processes is expected to make legal proceedings more efficient, which is expected to decrease necessary labour costs. This could mean that more legal proceedings could be handled by the same staff within the given time. In addition, the necessary investments are balanced by decreased costs for postal service providers, paper and office supplies, as well as archiving costs that would have to be invested in the future under the baseline scenario. ·The implementation of the policy package is expected to be a benefit for legal professionals, in particular lawyers. Although they would incur costs in relation to understanding the legislation and checking the extent to which and how the legislation would apply to a specific legal case, this is not considered to differ from the baseline scenario. The reason for this is that most lawyers do not have to deal with Regulation (EC) 1206/2001 on a case-by-case basis. Therefore, the time they would have to invest are considered business-as-usual costs. However, the policy package is expected to reduce legal ambiguities compared to the baseline scenario. ·Citizens and businesses are expected to benefit from the implementation of the policy package. In particular non-monetary benefits such as increased access to justice, freedom of choice (concerning the means to take evidence across borders that is most suitable for them), and decreased levels of stress within legal proceedings are important in this regard – especially in relation to vulnerable persons. ·Neither negative nor positive effects are expected in relation to the economy overall. It is, however, expected that positive economic effects of the policy package for specific types of businesses are negative effects for other types of businesses. For instance, the revenue generated for IT consulting service providers, as well as internet and telecom providers through the implementation of the policy package can also be regarded as a loss for postal service providers and office supply providers. Thus, the economic effect is regarded as neutral overall. Coherence +1 The coherence of the Regulation with EU and national law would be slightly improved compared to the baseline scenario. The Regulation would continue to be largely coherent internally, in relation to EU law, national law and bilateral agreements. In addition, some of the options would contribute positively to the coherence of the Regulation. In particular, the introduction of a tool for electronic communications and the recognition of digital evidence (option 6.2) as well as the encouragement of videoconferencing (option 4.2) are in line with and support the current strategies of the EU Commission in the context of the Digital agenda and the e-justice strategy. However, the small uncertainties identified in the evaluation would persist. Notably, the use of ‘request’ and potential overlaps with the Brussels IIa Regulation would not be clarified. Impacts on fundamental rights and the protection of personal data +1 The policy package addresses several issues which cause legal uncertainty and delays under the baseline scenario. At the same time, the policy package increases access to justice by promoting the use of distance communication to hear witnesses and affected parties. However, the effect of the policy package on the protection of personal data is ambiguous and will largely depend on the implementation at the Member State level. Environmental impacts +2 The environmental impacts of the Regulation under the policy package scenario are mainly related proposed changes to adopt electronic means of communication via CEF eDelivery (compared to paper-based communication under the baseline scenario) and to increase the use of videoconferencing and distance communication (instead of physical summons). While both channels of communication consume energy in operation and resources to produce the equipment, the overall impact on the environment is positive. Based on secondary sources, videoconferencing (and other means of distance communication) may only produce 7% of carbon emissions of physical meetings. At the same time, electronic communication has a smaller carbon footprint than equivalent standard mail (50% to 90% per unit). Average rating and conclusion +1.6 The policy package performs better than the baseline scenario in relation to all of the assessment criteria. It brings benefits in particular by reducing costs and delays (e.g. through introducing an electronic communication system and encouraging the use of videoconferencing). In addition, negative environmental impacts are reduced and coherence with other legal instruments continues to be ensured. 7.3. Impacts on fundamental rights and the protection of personal data The possibilities created by the e-CODEX electronic system would have a positive impact on the ability to exercise the right to an effective judicial remedy, and are therefore in conformity with Article 47 of the Charter of Fundamental Rights since electronic communication and document transmission enhances and reduces the time of the court proceedings. Stakeholders have pointed out that Article 47 also guarantees the right to an impartial and independent tribunal, and that in order be in conformity with that Article, future governance and coordination of e-CODEX and e-CODEX-related activities need to ensure that the system does not interfere with the functioning of the judiciary is guaranteed . Moreover, the electronic method of service together with the proposed ‘digital by default’ principle is expected to not only have a positive effect on access to justice, but also contribute to faster proceedings. Furthermore, it reduces costs or failures of service of documents experienced otherwise, where an inefficient method to effect service would have been chosen due to a lack of options under the baseline scenario. Moreover, citizens will have an increased access to justice, freedom of choice (concerning the means to take evidence across borders that is most suitable for them), and decreased levels of stress within legal proceedings are important in this regard – especially in relation to vulnerable persons. Likewise, the clarification provided by the proposal on the definitions and concepts (i.e. ‘court’) would reduce legal uncertainty and speed up procedures under the Regulation in practice. Next under the baseline scenario, the protection of personal data is not considered to be affected by the current Regulation. External factors influencing data protection and privacy are the General Data Protection Regulation (GDPR) and the growing threats to cybersecurity (also affecting public authorities). After entering into force in May 2018, the GDPR is expected to increase awareness on the issue, prompt actions to ensure security and integrity of databases and swift reactions to breaches of privacy in the judiciary. However, data protection in the judiciary will continue to be largely determined by national decisions and the integrity of postal services or the agencies/authorities involved in the process of cross-border service under the Regulation. At the same time, the incidence of attempted attacks on public IT infrastructure is expected to increase until 2030. This will also affect the judiciary in the Member States, depending on the proliferation of electronic communication, court IT systems and the interconnectedness with other IT systems or databases. Lastly, the wide variety of potential uses for social media corresponds to an equally broad range of legal issues relating to these communication channels. However, it should be noticed that documents will not be sent via social media, but these networks will be only used to sent information notice. 8.Conclusion and Evaluation and Monitoring Framework Based on the assessment and ratings provided in the previous section, the policy package performs better than the baseline scenario in relation to all of the assessment criteria. Thus, it is proposed to amend the current Regulation. For this purpose, a sound monitoring system of the Regulation should be put in place, including a comprehensive set of qualitative and quantitative indicators, and a clear and structured reporting and monitoring process. This is important to ensure that the amendments are implemented efficiently in the Member States and to verify if the Regulation is successful in achieving its specific objectives. It should be stressed out the importance of the European Judicial Network in civil and commercial matters (EJN civil) in the implementation and application of the Regulation on Tacking of Evidence. This forum is a key factor in getting relevant feedback from Member States (from the field) on the application of the various instruments and in identifying the real practical problems as it brings together national ministries as well as the central authorities and agencies dealing with the implementation of the Regulations. In the past, the EJN organized annual dedicated meetings on the analysis of the application of the Regulations on service of documents and taking of evidence. This practice will be continued in the future as well. The EJN also created a working group on assessing options of accurate data collection with regard to the application of the instruments, this forum could contribute further work to analysing possibilities of collecting data on the Regulations. The model of bilateral (peer to peer) meetings between central bodies of the Member States in the margins of the EJN contact point meetings, discussing and finding solutions to difficult cases, that has been established for other EU instruments, could be extended to the Regulations on Service of Documents and Taking of Evidence (this has been in fact proposed by some of the Member States in the latest meeting dedicated to the service of documents, in December 2017, in Tallinn).

Assessment criterion Indicator Frequency Horizontal aspects Estimated no. of cases in which the Regulation has been applied Once a year Estimated proportion of cross-border cases in which the Regulation is applied At least for every evaluation, i.e. every 3-5 years Estimated no. of citizens and legal persons affected by the Regulation in practice per Member State and year, based on the estimated no. of cases in which the Regulations are applied At least for every evaluation, i.e. every 3-5 years To reduce legal uncertainty Case law at national level pointing to uncertainties (e.g. ambiguity on certain concepts) / Case law at EU level pointing to uncertainties (e.g. lack of clarity on certain concepts) / To further improve the efficiency and speed of judicial proceedings and reduce the burden for citizens and businesses Number of cases in which direct taking of evidence is applied Once a year Number of cases in which videoconferencing is applied Once a year Number of cases in which evidence is submitted in electronic formats Once a year Quantitative information on (electronic) communication under the communication, incl.: -Number of interactions needed to execute and complete a request (using the CEF eDelivery tool and other channels used for communication attempts); -Frequency of cases, in which the rectification procedure is (necessary following a request); -Frequency of communications needed to rectify a request; At least for every evaluation, i.e. every 3-5 years Data on the duration of requests under Regulation (EC) 1206/2001 [It should be possible to prepare this based on the new tool for electronic communications, which contains automatic/manual logging of all steps for individual cases (at least for the procedure via competent courts and the procedure according to Article 17). It would be useful to facilitate the generation of case statistics in this tool.] Once a year Data on costs of proceedings in civil and commercial matters, including: -Cost for set-up and maintenance of the tool for electronic communication -Compliance costs, incl. administrative burden and technical systems cost: oFiling forms for requests for cooperation in taking of evidence (e.g. printing costs); oTranslation costs; -Citizens/businesses involved in legal proceedings: oCosts for legal advice; oTime spent on the taking of evidence (incl. hassle costs e.g. delays). At least for every evaluation, i.e. every 3-5 years Reasons for delays and undue costs (including the extent to which these are related to the functioning of the Regulation and their workflows) [This could also be supported by the new tool for electronic communication, which is expected to contain e.g. the number of correspondences per case. The latter indicates whether requests can be dealt with in a straightforward manner or whether clarifications are needed between the courts.] At least for every evaluation, i.e. every 3-5 years To improve access to justice and protection of procedural rights of parties to the proceedings No. and % of complaints of citizens relating to access to justice and procedural rights / No. and % of final court rulings (at EU and national level) establishing breaches of the Regulations /



9.REFIT (simplification and improved efficiency) REFIT Cost Savings – Preferred Option(s) Description Amount Comments Costs savings related to the mandatory application of the Regulation ·Reduce time spent on the taking of evidence, reduce costs for legal advice; ·Reduce legal uncertainty about the use of regulation Beneficiaries: citizens Reduced costs by defining other means of cross-border taking of evidence ·Reduce delays and costs ·Reduce time-cost for legal professions Beneficiaries: citizens, public authorities, Costs savings by making the use of videoconferencing mandatory if a person needs to be heard from another Member State 216 million Euro across the EU/8 milion Euro per Member State Beneficiaries: citizens Annual cost savings for the use of e-CODEX as a mandatory channel for transmitting and receiving agencies/courts Global costs: Approx.. 6 to 15 million Euro/year across the EU Costs savings for public authorities: 300.00 EUR across the EU Beneficiaries: public authorities and citizens Public authorities are expected to save costs in relation to labour costs, paper, envelopes, printer cartridges, shelves, archiving material, and archiving space. Reduced costs by accepting electronic (digital) evidence produced stored in another Member State ·Reduced costs related to paper-based communication ·Avoid costs using postal service ·Decrease labour costs Beneficiaries: public authorities and citizens Costs savings by new definition of ‘courts’ ·Low costs (for drafting of the text and raisining awareness of legal proffessions Beneficiaries: public authorities and citizens Costs savings by replacing the notion 'taking of evidece'(Article 1) with 'other judicial acts' ·Low costs (for drafting of the text and raisining awareness of legal proffessions Beneficiaries: public authorities and citizens The initiative is included in the Commission Work Programme 2018 under the REFIT initiatives in the Area of Justice and Fundamental Rights Based on Mutual Trust . The Commission also looked at opportunities to simply and reduce burdens in relation to taking of evidence in particular at the level of the citizens and businesses involved in cross-border civil judicial proceedings. The nature of this legislation means that it applies to all cross-border civil proceedings. The beneficiaries of this proposal range from citizens to legal professions and public administration. In the framework of the REFIT Platform, stakeholders recommended to the Commission to explore possibilities for reducing time in taking of evidence in other EU Member States. It was also observed that numbers of frequently used channels, such as taking of evidence through consular agents, or diplomatic officers are not acknowledged by the Regulation. The proposal will bring clarification in respect with the (mandatory) nature of the regulation, which will make it clear when the regulation is to be applied. The proposal will also establish other means of taking of evidence in addition to the existing two ways which will enrich the tools available under the regulation and will also stimulate its application. It will also improve the definition of 'courts' under the regulation, which will expand the number of authorities that can use the tools of the regulation. The proposal establishes a broader set of judicial actions which can constitute a 'taking of evidence' under the Regulation, which will lead to a higher number of cases in which citizens/business can benefit from the application of the Regulation. The impact assessment estimated annual cost savings of approx.. EUR 6 to 15 million Euro per year across the EU generated by the transmission of documents via eCodex. Citizens, business and public administration will also benefit from reduced hassle costs through transmission of the evidence through electronic channels between the designed authorities. The regulation will also make it clear that evidence which is transmitted in form of electronic document trough the appropriate communication system would be considered as it was transmitted in original (paper) and will provide mutual recognition of digital evidence which is produced and stored in another Member State. This will not only reduce the burden for citizens and business in proceedings but will also limit the instances where electronic proof is denied and will also be facilitating cooperation between national courts across the EU. The proposal establishes also the default rule of use of videoconferencing in cross-border taking of evidence (hearing a person in another Member State). The impact assessment estimated that this lead to savings of 216 million Euro across the EU/8 milion Euro per Member State. All these proposals will make the legal framework more likely to be applied and more coherent.

Annex 1: Procedural information 1. Lead DG, agenda planning and work programme This impact assessment and the related initiatives are a responsibility of the DirectorateGeneral for Justice and Consumers (JUST). The project has been added to the 2018 European Commission work programme under the section 'An Area of Justice and Fundamental Rights Based on Mutual Trust' as well as to the Regulatory Fitness and Performance Programme under 'Priority 7 – Simplification and Burden Reduction for upholding the rule of law and linking up Europe’s Justice Systems'. It envisages "to address issues of keeping up with digitalisation, using of the method of ‘direct taking of evidence’, which ensures that the courts take evidence directly in the territory of another Member State, ensuring legal certainty for courts, parties and lawyers, and clarify the grounds for refusing the execution of cooperation requests". The aim to improve the framework of judicial cooperation within the EU is also in line with the objectives of the Commission set by the Digital Single Market Strategy . In the context of e-Government the Strategy expresses the need for more actions to modernise public (including judicial) administration, achieve cross-border interoperability and facilitate easy interaction with citizens. 2. Organisation and timing Work on the preparation of this initiative started on 24 October 2017 with the 2018 European Commission work programme. The impact assessment was prepared with the involvement of JUST C.3 (Data protection) as well as the following Services through an Inter-Service Steering Group (ISG) chaired by the Secretariat General: the Commission's Legal Service; Directorate-General for Informatics; Directorate-General for Communications Networks, Content; Directorate-General for Internal Market, Industry, Entrepreneurship and SMEs; Directorate-General for Communication; Directorate-General for Employment; Directorate-General for Economic and Financial Affairs; Directorate-General for Migration and Home Affairs; Directorate-General for Research and Innovation; Directorate-General for Taxation and Customs Union and Directorate-General for Competition.

The Steering Group foresaw three meetings. A first meeting took place on 24 October 2017. The following ISG meetings were also scheduled: • 6 April 2018: 2nd meeting on the draft evaluation reports and draft impact assessments • Beginning of May 2018: 3rd meeting on the draft legislative proposals. On each occasion, the members of the Steering Group are given the opportunity to provide comments orally and/or in writing on the draft versions of the documents presented. 3.Consultation of the Regulatory Scrutiny Board The impact assessment report was submitted to the Regulatory Scrutiny Board on 9 April 2018. The Regulatory Scrutiny Board reviewed the draft impact assessment at its meeting of 3 May 2018 and delivered a positive opinion with comments on 7 May 2018. DG Just took into account the Boards recommendations and the report explains better the relationship between the two initiatives (Service of Documents Regulation) for judicial cooperation and the wider context. The impact assessment explains better why the Regulation represents a big step forward to the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters. The major problems and the baseline are now better identified and explained. The explanation of subsidiarity of the instrument and of the EU value added was enhanced. Moreover, the conclusions of the evaluation regarding the effectiveness have been further developed and the policy options now focus on the main elements (electronic communication and the use of video-conferencing) and the assessment of these main issues has been developed in the main text.. 4.Evidence, sources and quality The Commission consulted widely and received input from various sources for this impact assessment work. Evidence used in this impact assessment was gathered following a consultation strategy, which included an external study, a consultation with renowned experts in the field (practitioners as well as members of academia) through the Expert group on Modernisation of Judicial Cooperation in Civil and Commercial Matters and a public consultation through an online questionnaire accompanied by a consultation document. The public consultation strategy is described in detail in Annex 2. A workshop with Stakeholders will be held on 16 April 2018 for further consultation on expected impacts. On 4 May 2018 the Commission will also hold a meeting with Member States' experts on international civil procedure to inform them of the planned initiative and the options envisaged. Furthermore, the following discussions took place within the framework of the European Judicial Network in civil and comm