Opinion of the Economic and Social Committee on the "Initiative of the Federal Republic of Germany with a view to adopting a Council Regulation on cooperation between the courts of the Member States in the taking of evidence in civil and commercial matters"
Date: 2001-02-28
Institutions: European Economic and Social Committee
Subjects: civil law, commercial law, free movement of persons, fundamental rights, legal cooperation, proof

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3.8.
On the question of the territorial scope of the proposal,
the Committee would refer to its previously expressed views
on the nature and competence of the national authorities
responsible in each Member State for judicial cooperation with
the other Member States (in most cases, the national or federal
ministry of justice). The national contact point(s) should be

expressly designated and legitimated by these authorities.
Member States with responsibilities regarding the territories
with special characteristics mentioned in Article 299 of the EC
Treaty should establish appropriate legal and administrative
arrangements.

Brussels, 28 February 2001.

The President

of the Economic and Social Committee

Göke FRERICHS

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

(2001/C 139/04)

On 11 October 2000 the Council decided to consult the Economic and Social Committee, under Article
262 of the Treaty establishing the European Community, on the above-mentioned initiative.

The Section for the Single Market, Production and Consumption, which was responsible for preparing
the Committee’s work on the subject, adopted its opinion on 7 February 2001. The rapporteur was
Mr Herna´ndez Bataller.

At its 379th plenary session of 28 February and 1 March 2001 (meeting of 28 February 2001), the
Economic and Social Committee adopted the following opinion by 117 votes to one, with one abstention.

1.

Introduction

— under what conditions documents granted by a foreign

authority may be used.

The purpose of international legal assistance is to offset
1.1.
the difficulties which arise in proceedings as a result of the
inability to exercise powers of jurisdiction outside national
territory in order to execute specific procedural documents.

1.2.
In order to complete proceedings involving external
legal transactions, a number of procedural steps, such as
service of notifications, notice of proceedings or taking of
evidence, must be executed in another State.

The system of evidence and its admissibility is usually
the lex fori
to procedural

factors. Consequently,

1.3.
subject
determines:

— the general arrangements

for evidence: whether a
numerus apertus or clausus applies, and in the latter case,
which evidence is admissible,

1.4.
The origin of the problems posed by international
evidence largely lies in the differences between national legal
systems regarding evidence. The most significant differences
arise in relation to three aspects:

a)

b)

the greater or lesser role of judges in evidential proceed-
ings: while in some systems these are largely conducted
by judges, in others they are carried out by the parties
themselves;

the ‘pre-procedural’ or procedural character of giving
evidence: while in some systems, the period in which
evidence may be submitted is basically concurrent with
the proceedings which are already under way, and hence
when the claims have been clearly defined, in others it
runs mostly prior to the opening of proceedings and
before the claims have been exactly defined;

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c)

the degree to which individual parties are subject to the
investigating authority; while in some systems third
parties are obliged to give evidence but not the parties to
the case, in others both the parties to the case and third
parties are obliged to provide evidence.

2.

Solutions under international private law

Two options are available when State A considers that

2.1.
investigations are required within the territory of State B:

— Requests for cooperation are expressed through letters of
request and through a system of central authorities.

— Letters of request must contain sufficient information for
the enquiry to be executed usefully and effectively and, in
principle, must be drawn up in the language of the
requested State or accompanied by a translation.

— The authorities competent to execute the enquiry sought
in the letter of request, the way it is executed and the
available measures of compulsion are determined by the
law of the requested State.

— if the law of State B so permits, the party in question may
request the authorities of that State to take evidence and
may then use it in the primary proceedings in State A;

— The taking of evidence is communicated to the parties to
facilitate their attendance: if authorised by the requested
State, a judge from the requesting State may also be
present.

the second option is to request the legal authorities in
State A to take evidence. The party in question may
approach the judge primarily responsible for dealing with
the dispute and request him to order investigations to be
carried out in State B. In this case, two further options
arise:

a)

b)

for the investigations to be carried out by diplomatic
or consular means, in which case the evidence is
taken by the diplomatic or consular representative
of State A in State B (passive cooperation);

the second possibility is for the investigations to be
carried out by a State B authority. Cooperation of
this kind is requested through mutual legal assistance
channels, according to which the State A judge
contacts the relevant authority in State B, where the
evidence is located, and asks that authority to carry
out the necessary investigations (active cooperation).

International

2.2.
legal assistance channels are used to
request the authority of another State to carry out investi-
gations, and specifically to take evidence; the request leads to
the preparation of ‘letters of request’ (1) through which the
request is dealt with.

— Grounds for refusing cooperation are highly restricted:
when the requested State considers that it may prejudice
its sovereignty or security, or when the requested act does
not fall within the functions of the judiciary of the
requested State.

2.4.
The Hague Convention of 18 March 1970 on the
taking of evidence abroad in civil or commercial matters
applies in eleven of the EU Member States: it has not been
ratified by Austria, Belgium, Greece or Ireland.

2.5.
In the interests of compliance with the principle of
legal certainty, however, relations between Member States
which have ratified the Hague Convention of 18 March 1970,
and to whom the present regulation applies, and the remaining
Member States should be governed by a legal
instrument
which reflects as fully as possible the spirit and content of this
regulation.

3.

The proposed regulation

2.3.
The question of obtaining evidence in other States by
letters of request is governed by the 1954 Hague Convention
on civil procedure and, more specifically, by the Hague
Convention of 18 March 1970 on the taking of evidence
abroad in civil or commercial matters. Its main features are as
follows:

— The convention applies to civil and commercial matters.

3.1.
The Union has set itself the objective of maintaining
and developing the Union as an area of freedom, security and
justice in which the free movement of persons is ensured. For
the gradual establishment of such an area, the Community is
to adopt, among others, the measures relating to judicial
cooperation in civil matters needed for the proper functioning
of the internal market.

(1) The instrument by which the judicial authority of one State
requests the appropriate authority of another State to carry out
specific investigatory acts or other judicial acts within its territory:
this basically means carrying out enquiries.

3.2.
At its meeting in Tampere on 15 and 16 October
1999, the European Council recalled that new procedural
legislation in cross-border cases, in particular in the taking of
evidence, should be prepared under Article 65 of the Treaty.

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It

is often essential

3.3.
for a decision in a civil or
commercial matter pending before a court in a Member State
to take evidence or perform other judicial acts in another
Member State. It is therefore proposed to apply the principles
governing Council Regulation (EC) No. 1348/2000 of 29 May
2000 (1) on the service in the Member States of judicial and
extrajudicial documents in civil or commercial matters.

to Articles 1 and 2 of the Protocol on the position of Denmark
annexed to the Treaty, this country shall take no part in the
adoption of the regulation.

4. General comments

3.4.
It was decided to exclude from the scope of the
proposed regulation measures for assistance in enforcement
which fall within the scope of:

4.1.

The Committee agrees with:

— the regulation on insolvency procedures, and

— the 1968 Brussels Convention on jurisdiction and the
judgements in civil and commercial

enforcement of
matters.

— the choice of a regulation as the appropriate legal
instrument, on account of its value-added, since it is
binding in full and directly applicable to each Member
State, and

— the content of the proposed regulation, as submitted for

consultation, subject to the present comments.

Although it is based on the principle that the trans-
3.5.
mission and execution of requests for the performance of a
judicial act be made directly and by the most rapid means
possible between Member States’ courts, it is explicitly pro-
vided that it must be possible for Member States to indicate
their intention of designating only one transmitting or receiv-
ing agency or one agency to perform both functions for a
period of five years.

4.1.1.
The ESC supports the development of an area of
freedom, security and justice in the European Union. This
includes adopting the necessary measures in the field of legal
cooperation in civil matters so that individuals and businesses
are not hampered or discouraged in the exercise of their rights
because of the incompatibility or complexity of legal and
administrative arrangements in the Member States.

3.6.
So as to ensure the utmost clarity and legal certainty,
the request for the performance of a judicial act must be
transmitted on a form to be completed in the language of the
Member State of the requested court or in another language
accepted for administrative or legal purposes within the
territory of that State.

A request for the performance of a judicial act must be
3.7.
executed within two months:
if this is not possible, the
requested court must inform the requesting court of the
reasons preventing the request from being executed swiftly.

3.8.
The possibility of refusing to execute a request for the
performance of a judicial act is confined to strictly limited
exceptional situations.

3.9. Member States which are parties to the international
Hague Conventions shall be free to adopt agreements or
arrangements to expedite or simplify cooperation in the taking
of evidence, provided that such agreements are compatible
with the regulation.

In accordance with Articles 1 and 2 of the Protocol
3.10.
on the position of the United Kingdom and Ireland annexed to
the Treaty, these countries take no part in the adoption of the
proposal, although they may do so if they so wish. According

4.2.
Building a European legal area is absolutely dependent
upon improving cooperation between courts and, conse-
quently, upon simplifying and streamlining procedures in
order to remove malfunctions and delays.

The Committee has previously expressed its support (2)
4.3.
for abolishing the transitional period in the progressive
establishment of the ‘area of freedom, security and justice’
referred to in the Treaty of Amsterdam, given the non-
implementation or non-uniform implementation of the acts
adopted by the representatives of the Member State govern-
ments in this field prior to this Treaty being concluded.

4.4.
It would be appropriate for the text of the proposal to
mention its impact in terms of increasing or enhancing the
rights of the parties involved, and in particular of citizens of
the Member States. The ESC believes legal texts should be
understandable and should facilitate access to justice as a
public service.

4.4.1.
The Committee believes that the opinion of different
sectoral bodies on the draft regulation should be known: the
proposal should, for example, be forwarded to the relevant
national parliaments and judicial authorities to maximise
dissemination, discussion and awareness of it.

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

(2) ESC Opinion on the Proposal for a Council Directive on the service
in the Member States of judicial and extrajudicial documents in
civil or commercial matters; OJ C 368, 20.12.1999, p. 47.

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4.5.
The risk of conflict between the laws of different
Member States, particularly with regard to the burden of proof,
or the admissibility or otherwise of certain evidence, is a matter
of concern to the Committee. Adoption of the regulation must
not be accompanied by any erosion of the level of safeguards
offered by laws of a protective nature for all citizens, especially
the most vulnerable.

5.3.
Article 11(3) of the proposal could run counter to
internal Member State arrangements regarding protection of
fundamental rights, in keeping with the spirit of the Charter of
fundamental rights for EU citizens. An explicit reservation
regarding implementation should be introduced incorporating
compliance with such rights, without prejudice to the continu-
ation of the relevant system of guarantees under Member State
legislation or case-law.

4.5.1.
The possibility of changing the rules on the burden
of proof should be considered where the plaintiff alleges acts
of discrimination, where evidence is available to only one of
the parties and relates to the substance of the proceedings, or
where the legal effect of evidence may be affected.

The ESC considers that the law of the requesting
4.5.2.
Member State should be applicable where laws conflict. In this
respect, the case-law of the Court of Justice of the European
Communities should be extended to such circumstances. In a
dispute between parties of different nationalities, which falls
within the jurisdiction of a court of a country which is a
contracting party to the 1968 Brussels Convention, this case-
law gives precedence to the legislation governing conflict of
laws in the competent court (1).

4.6.
The ESC believes the transmitting and receiving agenci-
es described in Article 3 of the proposal as a derogation nullify
the general principle of direct transmission between the courts:
the regulation is incompatible with the criteria of simplification
and Community harmonisation.

5.

Specific comments

The territorial scope of the proposal may give rise to
5.1.
confusion when applied. The specific nature of certain territori-
es, as reflected in Article 299 of the Treaty establishing the
European Community, and the responsibilities certain Member
States have assumed regarding them should be borne in mind.
It should be pointed out in this regard that independently of
how evidence is actually taken, the bodies competent to
perform this task must be designated by the national authority
bearing the State’s external responsibility, thereby guaranteeing
the authenticity of the acts of these bodies. The Member States
must establish the proper legal and administrative channels for
this purpose.

5.2.
The Committee strongly believes that the proposal
should accord secondary status to the procedural provisions it
contains for areas covered by the Insolvency Regulation (2),
excluding only specific cases (e.g. credit institutions and other
financial intermediaries) from its scope.

5.3.1. With regard to fundamental rights, the ESC advocates
a high level of protection, as expressed in the Charter of
Fundamental Rights, and in particular respect of the rights
under Article 6 of the European Convention for the Protection
of Human Rights and Fundamental Freedoms, which guarantee
equality of arms between the parties involved in proceedings.

5.3.2.
A new point 5 should be added to Article 11 as
follows: ‘National authorities must accord the same probative
value to admissible certificates of civil status (or any such
documents which may serve as evidence within the scope of
the present regulation) issued by the authorities of another
Member State as they do to such certificates issued by
themselves, insofar as they are eligible’. This is more in keeping
with the case-law of the Court of Justice of the European
Communities (3).

In any case, the ESC believes that with regard to
5.3.3.
certificates issued by a Member State body, principles similar
to those of ‘mutual recognition’ in the single market should
apply, without prejudice to public policy.

5.4.
Explicit provision should be made for a judge to refuse
to execute a request on the grounds of force majeure under
circumstances which are not covered by Article 11(2), which
appears to refer only to ‘special procedures’.

An ad-hoc means of settling disputes should be
5.4.1.
introduced with regard to Article 13(3) of the proposal.
Accepting the wording of the proposal as it stands would
imply submission by the court of the Member State claiming
competence in the dispute to the Member State requesting that
evidence be taken.

5.4.2.
For this reason, the ESC considers the powers granted
to the central authority of each Member State for ‘seeking
solutions to any difficulties which may arise in respect of a
request’ [Article 4(1)(b)] to be insufficient, and is concerned at
the possibility which may arise of justice being denied: this
must be avoided at all costs.

(1) Judgement of the Court of Justice of the European Communities

of 9.11.2000, Coreck Maritime, C-387/98.

(2) Council Regulation (EC) No 1346/2000 of 29 May 2000 on

insolvency proceedings, OJ L 160, 30.6.2000, p. 1-19.

(3) Judgement of the Court of Justice of the European Communities
in which the
of 2.12.1997, case of Eftalia Dafeki, C-336/94,
German authorities refused to accept the probative value of the
date of documents issued by the Greek registry office.

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5.5.
It should be made clear that the parties involved must
not have to bear disproportionate or discriminatory costs on
the grounds of their nationality. The Committee is concerned
that Article 16(2) not only provides for reimbursement of
costs, but constitutes a ‘cautio iudicatum solvi’ (1) (deposit of
security for costs) for Member State nationals not resident in
the State in which the evidence is being taken, which would
be discriminatory.

5.5.1.
In obtaining evidence from the parties involved,
however, deposit of securities on a discriminatory basis must
not be accepted under any circumstances.

5.6.
The ESC is of the view that personal data used in
obtaining evidence in civil matters must be handled with due
regard and only for the original specific purpose, in keeping
with legislation on personal privacy.

5.6.1.
The collection, processing and use of personal data
must be carried out in accordance with the principles laid
down by the Council of Europe Convention of 28 January
1981 and Recommendation No. R(87)15 of the Committee of
Ministers of the Council of Europe of 17 September 1987.

5.7.
The claim in Article 19(1) of prevalence over conven-
tions entered into by Member States in this field may conflict
with Court of Justice case-law (2). The Committee believes that

(1) Repeatedly condemned by the Court of Justice: case C-43/95,
judgement of 26.9.1996; Hayes judgement of

Data Delecta,
20.3.1997; Austin judgement of 10.2.1997.

(2) Levy judgement of 2.8.1993, case C.158; Evans Medical judgement

of 28.3.1995, case C-324/93.

Brussels, 28 February 2001.

the wording could be amended in order to guarantee the
primacy of the regulation over the conventions in relations
between Member States, while complying with agreements
between the Member States and third countries. This would in
any case appear more in keeping with the hierarchy of laws in
relations between international and Community law as laid
down in Article 307 of the EC Treaty. Agreements concluded
between Member States and third countries in this sphere
should be designed to flesh out the system established by the
draft regulation. ‘Mixed’ agreements represent the most suitable
legal form for achieving this.

5.7.1.
The Committee particularly welcomes Article 19(2)
as it furthers one of the Union’s objectives, provides for the
adoption of measures between Member States facilitating
the taking of evidence and may ensure rapid cross-border
investigations. Such agreements must however comply with
the acquis communautaire and be open to the other Member
States.

The Committee would recall (3) the need for simple
5.8.
and rapid redress procedures. It therefore calls upon both
the Commission and the Council to consider formulating
legislative proposals standardising procedural aspects in order
to speed up proceedings (e.g. preparing a European instrument
of enforcement).

(3) ESC Opinion CES 233/2000 on the Proposal for a Council
Regulation (EC) on jurisdiction and the recognition and enforce-
ment of judgements in civil and commercial matters, rapporteur:
Mr Malosse, in OJ C 117, 26.4.2000, p. 6.

The President

of the Economic and Social Committee

Göke FRERICHS