COMMISSION STAFF WORKING DOCUMENT EXECUTIVE SUMMARY OF THE 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
Date: 2018-05-31
Institutions: Directorate-General for Justice and Consumers, European Commission
Subjects: cross-border cooperation, evidence, judicial cooperation in civil matters in the EU, judicial inquiry, new technology, video communications

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  EN 

   EUROPEAN COMMISSION  Brussels, 31.5.2018  SWD(2018) 284 final  COMMISSION STAFF WORKING DOCUMENT  EXECUTIVE SUMMARY OF THE 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) 285 final}  
 
 
Executive Summary  

Impact assessment on a 

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 

A. Need for action 

Why? What is the problem being addressed?  
The Regulation  establishes  an  EU-wide  system  for  direct  and rapid  transmission  and  execution  of requests  to 
take  evidence  between  courts  in  civil  and  commercial  matters.  It  also  sets  precise  criteria  for  the  form  and 
content of such requests. In particular, the Regulation replaced the cumbersome system used by the Member 
States  under  a  Hague  Convention  with  a  modern  system  of  direct  dealings  between  courts  (sending  requests 
and sending back the evidence taken). Currently, some 3.4 million civil and commercial court proceedings every 
year have cross-border implications. In many of these cases, the taking of evidence is highly important for the 
proper administration of justice. 

At present, contacts between the bodies designated by the Regulation are still almost exclusively paper-based, 
with adverse impacts on cost and effectiveness. In addition, videoconferencing is rarely used to hear people in 
another Member State. This initiative addresses the need to update the legislation and use modern technology 
in  cross-border  evidence-taking.  At  the  same  time,  it  tackles  some  gaps  in  the  Regulation  shown  by  the 
evaluation of its operation. Those gaps lead to three main category of problems:  
- delays and costs for citizens, businesses, and Member States;  
- shortcomings in the protection of procedural rights; and  
- legal complexity and uncertainty. 

The third point includes the ambiguity of some undefined basic terms under the Regulation and the lack of clarity 
arising from the optional nature of the Regulation, which sits alongside national law. 

The stakeholders affected are citizens and businesses, as parties to legal proceedings, Member States’ public 
and judicial authorities and legal professionals (in particular judges and lawyers). 

This  initiative  is  closely  linked  to  the  initiative  concerning  service  in  the  Member  States  of  judicial  and 
extrajudicial documents in civil or commercial matters (service of documents), governed by Regulation (EC) No 
1393/2007. The two initiatives are closely intertwined with the overall Commission priority of digitalisation and e-
justice and follow the lead of parallel work in the field of criminal justice (e-Evidence) in order to create a level 
playing field in the areas of criminal and civil justice alike.  They build upon and benefit from existing EU outputs 
and legal standards such as e-CODEX and the eIDAS Regulation. 

What is this initiative expected to achieve?  

The  policy  objective  of  this  initiative  is  to  improve  the  smooth  functioning  of  the  area  of  freedom, security  and 
justice,  and  of  the  internal  market.  This  is  to  be  done  by  increasing  the  efficiency  and  speed  of  judicial 
procedures  and  ensuring  proper  administration  of  justice  in  cases  with  cross-border  implications.  In  particular, 
the initiative will achieve this objective by adapting the law to technical developments and taking advantage of 
digitalisation  and  videoconferencing.  The  initiative  will  increase  legal  certainty  by  clarifying:  (1)  certain  basic 
concepts and (2) the relationship between the Regulation and national law. This will help to prevent delays and 
undue  costs for  citizens,  businesses  and  public  administrations and  address shortcomings  in  the  protection  of 
parties’ procedural rights.  

What is the value added of action at the EU level?  

The  initiative  has  clear  added  value  at  EU  level,  since  it  will  improve  the  efficiency  and  speed  of  judicial 
procedures by simplifying and  accelerating the cooperation mechanisms  for evidence-taking. This will improve 
the  administration  of  justice  in  cases  with  cross-border  implications.  By  its  very  nature,  cooperation  between 
Member States on cross-border taking of evidence cannot be efficiently regulated at the level of Member States 

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individually. 

B. Solutions 

What legislative and non-legislative policy options have been considered? Is there a preferred choice or 
not? Why?  

A  range  of  options,  from  non-legislative  action  to  different  levels  of  ambition  of  legislative  action  have  been 
considered. 

The preferred option is a policy package including a number of measures:  

-  having  CEF  eDelivery  (e-CODEX)  as  the  default  channel  for  electronic  communication  and  document 
exchange;   

- promoting modern means of taking evidence (e.g. videoconferencing, telephone-conferencing and other means 
of remote communication) as the default approach if a person needs to be heard from another Member State, 
but building in appropriate flexibility (via possible exceptions, inter alia depending on the availability of equipment 
at  the  court)  and  incentives  (via  the  financing  of  national  projects)  for  Member  States  to  equip  courts  with 
videoconferencing facilities ;  

- removing legal barriers to the acceptance of electronic (digital) evidence;  

- increasing legal certainty by including in the Regulation additional means of cross-border evidence-taking now 
often used outside its scope, including the taking of evidence via diplomatic officers or consular agents;  

- tackling divergent interpretations of the term ‘court’ by replacing it with a general definition of ‘judicial authority’;   

- communicating the importance of the uniform standards provided by the Regulation (streamlined procedures, 
equal standard of protection of the rights of the parties involved);  

- best practices for the competent courts, to help them to apply the procedures properly and without delay; and 

-  making  court  and  other  legal  professionals  more  aware  of  the  direct  channel  for  taking  evidence  under  the 
Regulation.  

Who supports which option?  

Stakeholders  were  asked  about  their  involvement  in  cross-border  judicial  proceedings  and  their  preferences. 
73 %  had  been  involved  in  cross-border  judicial  proceedings,  while  some  20 %  had  so  far  applied  Regulation 
(EC) 1206/2001. In particular, 65 % of respondents to the public consultation either strongly supported or tended 
to support using modern means of taking evidence such as videoconferencing (instead of being summoned in 
person  to  a  foreign  court)  .  Most  agreed  that  videoconferencing  is  the  trend  in  cross-border  proceedings,  so 
European  standards  should  be  drafted  to  ensure  that  the  hearing  experience  is  as  true  to  life  as  possible. 
Support 
that  electronic 
communication  should  become  the  default  between  authorities/agencies  involved  in  cross-border  judicial 
cooperation  in  civil  matters,  with  61 %  of  respondents  agreeing  and  39 %  tending  to  agree.  There  was  also 
broad support for widening the definition of ‘court’. 

for  digitalisation  was  particularly  strong: 

there  was  practically  a  consensus 

What are the benefits of the preferred option (if any, otherwise main ones)?                                       

C. Impacts of the preferred option 

The  preferred  policy  package  would  increase  efficiency  and  legal  certainty  and  reduce  delays  and  costs  for 
stakeholders  involved  in  cases  in  which  evidence  is  taken  across  borders.  More  specifically,  use  of  electronic 
communication  and  videoconferencing  for  the  mechanisms  under  the  Regulation  would  make  them  more 
efficient. The investment in technical infrastructure and processes is expected to make legal proceedings more 
efficient  and to  cut costs. A  number of clarifications  and  additions  would  increase  legal  certainty  (e.g.  defining 
additional channels for taking evidence, and clarifying the concepts of ‘court’ and ‘taking of evidence’), as would 
new  awareness-raising  and  guidance  material.  The  efficiency  of  cross-border  judicial  proceedings  would 
improve,  reducing  the  burden  on  citizens  and  businesses.  The    clarifications,  additional  guidance  and 
awareness-raising would help to reduce delays. The measure would improve access to justice and the protection 
of the parties’ rights, partly by reducing delays and partly because it is expected to increase the number of cases 
in which the Regulation is applied. In general, citizens and businesses are expected to benefit from the package, 
particularly  in  the  form  of  non-monetary  benefits  such  as  increased  access  to  justice,  freedom  of  choice 

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(choosing  the  means of  taking  evidence  across  borders  that  best  suits  them),  and  the  reduced  stress of  legal 
proceedings.  

What are the costs of the preferred option (if any, otherwise main ones)? 

The  policy  package  is  expected  to  generate  benefits  for  citizens  and  businesses  involved  in  cross-border 
proceedings. Enhanced legal certainty and faster, less costly proceedings would help to encourage citizens and 
businesses  to  engage  in  cross-border  transactions  and  thus  increase  cross-border  business  and  enhance  the 
functioning of the internal market. For Member States, e-CODEX and videoconferencing would generate some 
costs, but these are one-off while the benefits are ongoing and generate cost savings (e.g. it costs less to hear a 
witness  by  videoconference  than  in  person).  Also,  the  costs  relating  specifically  to  this  Regulation  will  be 
mitigated by the increased digitalisation of the judiciary in general. Overall, the benefits would clearly outweigh 
the costs. Businesses would benefit from improvements as parties to judicial proceedings; other effects would be 
relatively neutral.  

How will businesses, SMEs and micro-enterprises be affected?  

The  preferred  policy  package  would  bring  benefits  for  businesses  involved  in  cross-border  legal  proceedings, 
with enhanced legal certainty as regards the proper functioning of cross-border proceedings, and faster and less 
costly  proceedings.  For  businesses  involved  in  types  of  business  relevant  to  the  taking  of  evidence,  revenue 
may  shift  between  business  types:  IT  consulting  service  providers,  internet  and  telecom  providers  stand  to 
benefit, while there could be less need for postal communication if it is  replaced by electronic  communication. 
The overall economic impact on service providers is, however, expected to remain neutral, as the negative and 
positive impacts on different types of businesses are expected to be of the same size , but there will be efficiency 
gains in the proceedings themselves. 

Will there be significant impacts on national budgets and administrations?  
The proposed package will not impose significant costs on national administrations  and, simultaneously, there 
would also be savings. Member States’ public authorities are expected to benefit from reduced costs in relation 
to postal services and administrative tasks, time saving due to more efficient legal proceedings and decreasing 
administrative  burdens  and  labour  costs.  The  introduction  of  e-CODEX  and  organisation  of  videoconferencing 
and other long-distance communication would bring some costs, but would also reduce the costs with regard to 
postal  services  in  the  future.  Moreover,  some  costs  would  be  shared  by  the  European  Commission  and  the 
Member States, e.g. through co-financing.  

Will there be other significant impacts?  
The proposed package would have a positive impact on judicial cooperation and enhance mutual trust between 
Member States. Through e-justice, it would provide knowledge of the relevant methods and costs to ensure fast 
and effective procedures in cross-border evidence-taking. It would improve legal certainty and access to justice 
by improving the parties’ procedural rights. Moreover, it would serve the need to modernise public administration 
(including  the  courts),  achieve  cross-border  interoperability  and  facilitate  easier  interaction  with  citizens  in  line 
with the digital single market strategy and e-government strategy.  

When will the policy be reviewed?  
The impact of the proposed initiative will be evaluated in a report drafted by the Commission 5 years after the 
entry into force of the amended instrument.  

D. Follow up 

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