Report from the Commission to the Council, the European Parliament and the European Economic and Social Committee on the application of the Council Regulation (EC) 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
Date: 2007-12-05
Institutions: European Commission
Subjects: EU Member State, civil law, commercial law, judicial cooperation in criminal matters in the EU, proof

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 5.12.2007 
COM(2007) 769 final 

REPORT FROM THE COMMISSION TO THE COUNCIL, THE EUROPEAN 
PARLIAMENT AND THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE 

on the application of the Council Regulation (EC) 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 

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1. BACKGROUND 

This  Report  from  the  Commission  has  been  prepared  in  accordance  with  Article  23  of 
Council Regulation (EC) 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.1  

Before 2001 there was no binding instrument between all Member States concerning the 
taking of evidence. In 2001 the Council of the European Union adopted Regulation (EC) 
No 1206/2001 on the cooperation between the courts of the Member States in the taking 
of evidence in civil or commercial matters which lays down procedural rules to make it 
easier to take evidence in another Member State. Since 1 January 2004, the Regulation is 
applicable  throughout  the  Union  with  the  exception  of  Denmark.  Between  the  Member 
States  concerned,  it  replaces  the  Hague  Convention  of  1970.  The  Regulation  and  all 
information  relevant  for  its  application  are  available  in  the  European  Judicial  Atlas  in 
Civil Matters: 

http://ec.europa.eu/justice_home/judicialatlascivil/html/te_information_en.htm 

Since  the  entry  into  force  of  the  Regulation,  the  Commission  has  discussed  the 
application  of  the  Regulation  at  different  occasions  in  the  context  of  the  European 
Judicial Network in Civil and Commercial Matters. In consultation with the network, the 
Commission  has  also  drawn  up  a  Practice  Guide  for  the  application  of  the  Regulation. 
Furthermore, the Commission has requested a study on the application of the Regulation.  

1.1.  Meetings of the European Judicial Network in Civil Matters  

The  application  of  the  Regulation  has  been  discussed  at  different  meetings  of  the 
European Judicial Network in Civil Matters. 

At  the  occasion  of  the  annual  meetings  of  all  members  of  the  network  on  13-
14 December 2004 and on 11 December 2006, sessions were  devoted to discussions of 
the experiences with the application of the Regulation. The main issues raised were: 

–  Practical problems (e.g. requests were in certain cases still sent to the central bodies, 
in the forms the languages of the requesting state was sometimes used, other problems 
of communication between the requesting and the requested courts). 

–  The  scope  of  application  of  the  Regulation,  in  particular  the  notions  of  "civil  and 
commercial matters" and of "evidence" (especially problems that have occurred with 
respect  to  taking  DNA  and  blood  samples  in  particular  in  the  context  of  paternity 
tests). 

–  The  use  of  modern  communication  technology  in  the  context  of  the  taking  of 
evidence.  In  particular,  there  were  complaints  about  the  fact  that  in  many  Member 
States the technical means for videoconferences were not available yet. 

1 

OJ L 174, 27.6.01, p. 1. 

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On 21 April 2005, the network discussed a draft for the Practice Guide which was drawn 
up by the Commission Services in consultation with the network. The guide seeks to give 
guidance  to  parties,  judges,  lawyers  and  central  bodies  and  provide  a  better 
understanding of the Regulation. It is available at:  

http://ec.europa.eu/civiljustice/evidence/evidence_ec_guide_en.pdf 

At  the  end  of  2006  and  the  beginning  of  2007,  the  Commission  disseminated  50.000 
copies of the practice guide to Member States. All courts involved in the application of 
the Regulation should have received a copy of this guide. 

1.2. 

Study on the Application of Regulation (EC) 1206/2001 

As stated above, in order to prepare this report the Commission has requested a study on 
the application of the Regulation which has been prepared by a contractor. The study is 
available at:  

http://ec.europa.eu/justice_home/doc_centre/civil/studies/doc_civil_studies_en.htm 

The main objective of the Study was to obtain an empirical analysis of the application of 
the Regulation, in particular concerning the question whether through the application of 
the  Regulation  the  cooperation  between  courts  in  the  taking  of  evidence  has  been 
improved, simplified and accelerated. 

The  study  is  based  on  a  survey  which  was  carried  out  by  the  contractor  from 
November 2006 to January 2007 is based on 424 out of 544 answers to a questionnaire 
concerning  the  application  of  several  articles  of  the  Regulation.  The  questionnaire  was 
answered  by  administrations  of  Member  States,  judges,  attorneys  and  other  persons 
involved in the application of the Regulation. 

2. THE APPLICATION OF REGULATION (EC) 1206/2001  

This  section  focuses  on  the  question  whether  the  application  of  the  Regulation  has 
simplified and accelerated cooperation between courts in the taking of evidence, and on 
the practical application of several provisions of the Regulation. 

2.1. 

Time required for the execution of requests 

The study indicates that most requests for the taking of evidence are executed within 90 
days as provided for by Article 10(1) of the Regulation (see Annex I). According to the 
respondents  to  the  questionnaire,  this  is  faster  than  before  the  entry  into  force  of  the 
Regulation.  However,  there  is  also  a  significant  number  of  cases  in  which  the  90  days 
time limit is exceeded. In some cases even more than 6 months are required. Moreover, 
the  amount  of  time  required  for  the  execution  of  requests  varies  to  a  significant  extent 
between Member States. It is particularly noteworthy that in many of the Member States 
that joined the European Union in 2004 requests are generally executed within 90 days, 
whereas the time required in the some of the other Member States tends to be longer. 

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2.2. 

Central bodies 

It  seems  that  generally  speaking  central  bodies  are  effective  in  carrying  out  the  duties 
conferred  on  them  by  the  Regulation  (see  Annex  II).  However,  effectiveness  seems  to 
vary significantly between Member States.  

The study also indicates that central bodies sometimes have to seek solutions to different 
kinds of difficulties which have arisen in respect of a request, as provided for by Article 
3(1) b) of the Regulation.2 

Despite  the  fact  that  the  Regulation  provides  that  the  transmission  of  requests  for  the 
performance of taking of evidence is to be made directly between Member States’ courts, 
and that consequently central bodies should forward requests to the competent court only 
"in  exceptional  cases",  the  study  indicates  that  central  bodies  "sometimes"  or  even 
"often" forward requests to the competent court. It can therefore be concluded that in the 
current  period  of  adaptation  which  is  still  ongoing,  the  Regulation  is  not  known  well 
enough, and that all efforts should be made to make it better known among courts in the 
European Union. 

2.3. 

Forms 

The  study  indicates  that  the  use  of  the  standard  forms  has  generally  not  caused  any 
problems (see Annex III). The introduction of the forms is considered as very positively 
and as a main reason for simplifying and accelerating the taking of evidence. However, 
there  is  insufficient  training  among  legal  practitioners  involved  in  filling  in  the  forms 
which leads to problems in the use of the forms. It seems in particular that sometimes the 
forms are not filled in completely and that information essential for executing a request is 
missing. 

2.4. 

Communications technology 

The study indicates that the use of communications technology provided for in Articles 
10(4) and 17 (4) of the Regulation has in practice simplified and accelerated the taking of 
evidence  in  other  Member  States,  but  that  it  is  still  used  rather  rarely.  In  cases  where 
communications  technology,  in  particular  videoconference,  has  been  used,  this  has 
generally not caused any problems (see Annex IV).  

These  findings  show  that  on  the  one  hand  the  taking  of  evidence  is  simplified 
significantly  by  the  use  of  communications  technology,  but  that  on  the  other  hand 
unfortunately  the  potential  lying  in  the  use  of  communications  technology  is  currently 
used still little since the technology necessary is available only to a limited extent.3 In the 
future,  significant  efforts  should  be  made  by  the  Member  States  to  increase  the  use  of 
communications technology, in particular videoconference. The importance of the further 

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However, the comments made in the questionnaire do not give much information about the kind 
of problems central bodies had to deal with. 
The  courts  in  which  videoconference  is  currently  available  are  indicated  in  the  manual  in  the 
European Judicial Atlas in Civil Matters. At the moment, videoconference is available in all courts 
in  the  Netherlands  and  in  Portugal,  and  in  certain  courts  in  Austria,  Cyprus,  Estonia,  Finland, 
Germany, Ireland, Slovenia, Sweden and the United Kingdom. 

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promotion of E-Justice has also been stressed by the Council which at its meeting of 12 
and  13  June  2007  requested  the  continuation  of  work  on  E-Justice  "with  a  view  to 
creating  at  European  level  a  technical  platform",  as  well  as  by  the  European  Council 
which  concluded  at  its  meeting  of  21  and  22  June  2007  that  "the  Council  should  also 
further promote electronic communication on legal matters («E-Justice»)". 

2.5. 

Transmission of requests 

It  seems  from  the  study  (see  Annex  V)  that  requests  and  communications  are  usually 
transmitted by the "swiftest possible means" (Article 6 of the Regulation).4 

2.6. 

Direct court-to court contacts 

In  contrast  to  the  1970  Hague  Convention  on  the  taking  of  evidence,  the  Regulation 
provides  –  as  one  of  the  most  important  innovations  compared  with  the  Hague 
Convention - that the transmission of requests for the performance of taking of evidence 
is to be made directly between Member States’ courts. 

The  study  indicates  that  requesting  and  requested  courts  (Article  2)  are  generally 
effective  in  fulfilling  their  tasks  under  the  Regulation.  This  varies,  however,  between 
Member States. 

The  direct  transmission  of  requests  between  courts  does  not  seem  to  have  caused  any 
specific  problems.  In  indicated  above  (under  2.2.),  in  the  current  period  of  adaptation 
there are still many cases in which due to a lack of knowledge of the Regulation, direct 
court-to-court contacts are not used, and the taking of evidence is delayed since central 
bodies are asked to forward requests to the competent court. 

2.7. 

Direct taking of evidence (Article 17) 

Another  important  feature  of  the  Regulation  is  the  possibility  of  the  direct  taking  of 
evidence by the requesting court in another Member State. 

The  study  indicates  that  the  direct  taking  of  evidence  provided  for  in  Article  17  of  the 
Regulation is still used very little. However, in those cases where it has been used, it has 
simplified  and  accelerated  the  taking  of  evidence,  generally  without  causing  any 
particular problems (see Annex VII). 

2.8. 

Application of Article 18 (costs) 

It follows from the study that Article 18 of the Regulation has generally not caused any 
particular problems (see Annex VIII). The study indicates, however, that the differences 
between  national  laws  concerning  the  reimbursement  of  fees  paid  to  experts  are 
sometimes perceived as negatively. 

4 

Please note in this respect that all Member States accept requests by post, most (all except Poland 
and  Spain)  also  fax.  Email  is  accepted  only  in  13  Member  States  (Czech  Republic,  Estonia, 
Finland, France, Greece, Hungary, Ireland, Italy, Latvia, Malta, Portugal, Slovenia and Slovakia). 

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2.9. 

Problems of interpretation 

The study indicates that the Regulation has not caused major problems of interpretation. 
There  are,  however,  indications  that  the  notions  of  “civil  or  commercial  matters”, 
“evidence” and “court” are not always clear and that sometimes more guidance as to their 
precise content is considered desirable (see Annex IX). 

It  seems  that  in  particular  the  fact  that  the  concept  of  "evidence"  is  not  defined  in  the 
Regulation has created difficulties. This has lead to significantly diverging interpretations 
of  what  is  considered  as  "evidence"  in  the  sense  of  the  Regulation,  in  particular  with 
respect  to  taking  DNA  and  blood  samples  and  expertises  on  family  or  child  welfare. 
Whilst  respecting  the  fact  that  the  ultimate  responsibility  for  interpreting  the  notion  of 
"evidence" lies with the European Court of Justice,5 the Commission is of the view that 
this  concept  should  be  interpreted  autonomously  and  that  in  order  to  achieve  the 
objectives  of  the  Regulation,  the  scope  of  application  of  the  Regulation  should  not  be 
limited  unnecessarily  by  a  too  narrow  interpretation.  On  this  question,  the  exchange  of 
views  and  experiences  in  the  framework  of  the  European  Judicial  Network  in  Civil 
Matters should continue. 

2.10.  Reference to national law 

The fact that the Regulation makes several references to national laws is not regarded as 
very problematic. According to the study it is, however, sometimes felt that there should 
be gradual harmonisation of national laws (see Annex X). 

2.11.  Compatibility with the 1970 Hague Convention 

There  are  no  problems  of  compatibility  between  the  Regulation  and  other  instruments 
such as the 1970 Hague Convention on the Taking of Evidence (see Annex XI). 

2.12. 

Simplification and acceleration of the taking of evidence 

The  Regulation  has  simplified  and  accelerated  the  taking  of  evidence  (see  Annex  XII). 
The  extent  to  which  this  has  occurred  varies,  however,  to  a  significant  extent  between 
Member States. 

3. CONCLUSIONS 

The  Commission  draws  the  following  conclusions  concerning  the  application  of 
Regulation 1206/2001 since its entry into force in 2004: 

The application of the Regulation has generally improved, simplified and accelerated the 
cooperation between the courts on the taking of evidence in civil or commercial matters. 
The  Regulation  has  achieved  its  two  main  objectives,  namely  firstly  to  simplify  the 

5 

Please  note  in  this  context  that  a  question  concerning  the  interpretation  of  the  Regulation  is 
currently pending at the European Court of Justice. In C-175/06 (Tedesco/Fittings SrL), the court 
which  made  the  reference  asks  whether  a  request  for  obtaining  a  description  of  goods  under 
Articles 128 and 130 of the Italian Code of Industrial and Intellectual Property is one of the forms 
of the taking of evidence prescribed by Council Regulation (EC) No 1206/2001. 

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cooperation  between  Member  States  and  secondly  to  accelerate  the  performance  of  the 
taking  of  evidence,  to  a  relatively  satisfactory  extent.  Simplification  has  been  brought 
about mainly by the introduction of direct court-to-court transmission (although requests 
are  still  sometimes  or  even  often  sent  to  central  bodies),  and  by  the  introduction  of 
standard  forms.  As  far  as  acceleration  is  concerned,  it  can  be  concluded  that  most 
requests for the taking of evidence are executed faster than before the entry into force of 
the Regulation and within 90 days as foreseen by the Regulation.  

Consequently,  modifications  of  the  Regulation  are  not  required,  but  its  functioning 
should  be  improved.  In  particular  in  the  current  period  of  adaptation  which  is  still 
ongoing,  there  are  certain  aspects  concerning  the  application  of  the  Regulation  which 
should be improved: 

First  of  all,  it  follows  from  various  findings  that  –  despite  the  discussions  held  in  the 
European Judicial Network in Civil Matters and the availability of the practice guide in 
all Member States - the Regulation is not enough known yet among legal practitioners. 
This leads to unnecessary delays and problems. 

Therefore,  the  work  accomplished  in  the  context  of  the  European  Judicial  Network  in 
Civil  and  Commercial  Matters  should  be  better  exploited  in  the  Member  States,  and  in 
particular it should be ensured that the practice guide is disseminated widely among legal 
practitioners by any means. 

It  seems  that  the  extent  to  which  the  taking  of  evidence  has  been  simplified  and 
accelerated  varies  significantly  between  Member  States.  This  becomes  particularly 
evident  with  respect  to  the  time  required  for  the  taking  of  evidence  since  in  some 
Member  States  the  time  frame  of  90  days  is  often  not  complied  with.  But  also  the 
effectiveness  of  central  bodies  and  the  availability  of  modern  communications 
technology, in particular videoconference varies significantly between Member States. 

Finally, it must be concluded that not only the potential of communications technology is 
by no means used to a full extent yet, but also the possibility of direct taking evidence, an 
important innovation of the Regulation, is still used rather rarely. 

Therefore, the Commission  

•  encourages all further efforts – in particular beyond the dissemination of the practice 
guide  -  to  enhance  the  level  of  familiarity  with  the  Regulation  among  legal 
practitioners in the European Union.  

•  is of the view that measures should be taken by Member States to ensure that the 90 

day time frame for the execution of requests is complied with. 

•  is  of 

that 

the  view 

technology, 

the  modern  communications 

in  particular 
videoconferencing which is an important means to simplify and accelerate the taking 
of  evidence,  is  by  far  not  used  yet  to  its  possible  extent,  and  encourages  Member 
States to take measures to introduce the necessary means in their courts and tribunals 
to perform videoconferences in the context of the taking of evidence. The importance 
of  the  further  promotion  of  E-Justice  has  also  been  stressed  by  the  Council  (at  its 
meeting of 12 and 13 June 2007) and by the European Council (at its meeting of 21 
and 22 June 2007). 

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Annex I: Time required for the execution of requests 

From your experience, the average time required for the execution of requests is: 

Less than 6 weeks

6 to 12 weeks

10,9%

48,0%

M ore than 12 weeks

28,6%

Don´t know/ Don´t answer

12,5%

0%0%

20%20%

40%40%

60%60%

80%80%

100%100%

Is this faster than before the Regulation entered into force? 

Yes, significantly

Yes

Varies between Member States, but 
generally speaking yes

No

Difficult to say

9,5%

10,0%

25,4%

24,3%

24,3%

Don´t know/ Don´t answer

6,5%

0%0%

20%20%

40%40%

60%60%

80%80%

100%100%

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Annex II: Central bodies 

How effective are the central bodies in supplying information to courts and seeking solutions to any 
difficulties which may arise in respect of a request?  

 Very effective

  Effective

Varies between Member States, but 
generally speaking rather effective

Varies between Member States, but 
generally speaking rather ineffective

 Ineffective 

Difficult to say

2,7%

18,7%

33,0%

9,5%

2,5%

28,1%

 Don’t know/ Don’t answer

5,5%

How  often  have  central  bodies  had  to  seek  solutions  to  difficulties  which  have  arisen  in  respect  of  a 
request? 

0%0%

20%20%

40%40%

60%60%

80%80%

100%100%

                                        Often

4,5%

                                Sometimes

45,5%

                                    Never

31,8%

Do not know/ Do not answer 
(Dk/Da)

18,2%

0%0%

20%20%

40%40%

60%60%

80%80%

100%100%

From your experience, how frequently have central bodies forwarded a request to the competent court at 
the request of a requesting court? 

Often

Sometimes

Never

13,6%

50,0%

27,3%

Do not know/ Do not answer (Dk/Da)

9,1%

0%0%

20%20%

40%40%

60%60%

80%80%

100%100%

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Annex III: Forms 

Has the practical application of the forms caused any problems? If so, which forms? Why? 

No 
77,1% 

*Yes 
12,7% 

Dk/Da 
10,2% 

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Annex IV: Communications technology 

How frequently is communications technology used for taking evidence? In which types of requests? 

Rarely

Sometimes

Often

62,2%

17,7%

4,2%

Don’t know/ Don’t answer

15,9%

0%0%

20%20%

40%40%

60%60%

80%80%

100%100%

In practice has the use of communications technology simplified and accelerated the taking of evidence in 
other Member States? 

Yes, considerably

Yes

Varies between M ember States, but 
generally speaking yes

No

Difficult to say

Don’t know/ Don’t answer

5,7%

15,2%

13,4%

12,7%

12,2%

40,8%

Has the use of communications technology caused any problems? If so, which? 

0%0%

20%20%

40%40%

60%60%

80%80%

100%100%

*Yes 
10,2% 

Dk/Da 
23,6% 

No 
66,2% 

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Annex V: Transmission of requests 

Are  the  requests  and  communications  addressed  to  your  Member  State  pursuant  to  this  Regulation 
transmitted  by  the  "swiftest  possible  means"  (Article  6  of  the  Regulation)  which  your  Member  State 
accepts? 

Yes

Yes, mostly

M ostly not

No

Do not know/ Do not answer 
(Dk/Da)

36,4%

18,2%

13,6%

13,6%

18,2%

0%0%

20%20%

40%40%

60%60%

80%80%

100%100%

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Annex VI: Direct court-to court transmission 

How  effective  are  the  requesting  and  requested  courts  (Article  2)  in  fulfilling  their  tasks  under  the 
Regulation? 

Very effective

Effective

Varies between M ember States, but 
generally speaking rather effective

Varies between M ember States, but 
generally speaking rather ineffective

Ineffective

Difficult to say

2,2%

21,6%

37,8%

8,5%

3,7%

20,4%

Don’t know/ Don’t answer

5,6%

Has the introduction of direct court-to-court contacts caused specific problems? 

0%0%

20%20%

40%40%

60%60%

80%80%

100%100%

No 
75,8% 

*Yes 
9,0% 

Dk/Da 
15,2% 

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Annex VII: Direct taking of evidence 

How frequently is the direct taking evidence used?  

59,0%

Rarely

Sometimes

Often

Don’t know/ Don’t answer

5,2%

17,2%

18,6%

0%0%

20%20%

40%40%

60%60%

80%80%

100%100%

In practice, has the introduction of this method of taking evidence simplified and accelerated the taking of 
evidence in other Member States? 

Yes, considerably

Yes

Varies between M ember States, but 
generally speaking yes

No

Difficult to say

Don’t know/ Don’t answer

5,2%

16,7%

19,2%

8,5%

36,8%

13,6%

Has the application of Article 17 caused any problems? If so, which? 

0%0%

20%20%

40%40%

60%60%

80%80%

100%100%

*Yes 
5,2% 

Dk/Da 
26,6% 

No 
68,2% 

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Annex VIII: Application of Article 18 

Has the practical application of Article 18 (costs) caused any problems? If so, which? 

No 
75,4% 

*Yes 
7,0% 

Dk/Da 
17,6% 

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Annex IX: Problems of interpretation 

Have there been problems of interpretation of the Regulation, in particular concerning its scope and the 
concept of "evidence"? Has this led to a refusal to execute requests (Article 14)? 

Yes 
15,2% 

Dk/Da 
10,4% 

No 
74,4% 

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Annex X: Reference to national law 

Do you find it problematic that the Regulation often refers to the national laws of Member States? 

Not much

Fairly

A lot

Don’t know/ Don’t answer

46,3%

34,6%

9,6%

9,5%

0%0%

20%20%

40%40%

60%60%

80%80%

100%100%

Do you consider the harmonisation of the procedural laws of the Member States on the issue of the taking 
of evidence desirable? 

  Yes 
76,1% 

No 
16,4% 

Dk/Da 
7,5% 

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Annex XI: Compatibility with the 1970 Hague Convention 

Have you found problems of compatibility between the Regulation and other instruments such as the 1970 
Hague Convention on the Taking of Evidence? 

No 
76.6% 

Yes 
10.5% 

Dk/Da 
12.9% 

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Annex XII: Simplification and acceleration of the taking of evidence 

From  your  experience,  has  the  application  of  Regulation  1206/2001  simplified  and  accelerated 
cooperation between courts as regards the taking of evidence? 

Yes, significantly

Yes

Varies between M ember States, but 
generally speaking yes

No

Difficult to say

Don’t know/ Don’t answer

11,4%

8,0%

0,8%

27,6%

26,6%

25,6%

0%0%

20%20%

40%40%

60%60%

80%80%

100%100%

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