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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   EUROPEAN COMMISSION  Brussels, 31.5.2018 COM(2018) 378 final 2018/0203 (COD)  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 {SEC(2018) 271 final} - {SWD(2018) 284 final} - {SWD(2018) 285 final}  
 
 
EXPLANATORY MEMORANDUM 

1. 

• 

CONTEXT OF THE PROPOSAL 

Reasons for and objectives of the proposal 

Among the EU’s tasks is that of developing a European area of justice in civil matters based 
on the principles of mutual trust and the mutual recognition of judgments. The area of justice 
requires  judicial  cooperation  across  borders.  For  this  purpose,  and  to  facilitate  the  proper 
functioning of the internal market, the EU has adopted legislation on the cross-border service 
of judicial documents1 and on cooperation in the taking of evidence2. These instruments are 
crucial  in  the  regulation  of  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 the Hague Conventions3 between the Member States4. 

This legislation on judicial cooperation has a real impact on the everyday lives of EU citizens, 
be  it  as  private  individuals  or  business  operators.  It  is  applied  in  judicial  proceedings  with 
cross-border implications, where its proper functioning is indispensable to ensuring access to 
justice and fair trials. The efficiency of the framework of international judicial assistance has 
a  direct  impact  on  how  the  citizens  involved  in  such  cross-border  disputes  perceive  the 
functioning of the judiciary and the rule of law in the Member States. 

Smooth cooperation between courts is also necessary for the proper functioning of the internal 
market. In 2018, approximately 3.4 million civil and commercial court proceedings in the EU 
have cross-border implications5. In many such proceedings, there is a need to obtain evidence 
from  another  Member  State;  the  Regulation  on  the  taking  of  evidence  provides  tools  that 
facilitate access to that evidence. 

Council  Regulation  (EC)  No  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 
European judicial cooperation, given that it is often crucial to present sufficient evidence to 
the court to prove a claim. The Regulation establishes an EU-wide system for the direct and 
rapid  transmission  of  requests  for  the  taking  and  execution  of  evidence  between  courts  and 
lays  down  precise  rules  as  to  the  form  and  content  of  such  requests.  In  particular,  it  has 

1  Regulation (EC) No 1393/2007 of the European Parliament and of the Council of 13 November 2007 on the 
service in the Member States of judicial and extrajudicial documents in civil or commercial matters (service 
of documents), and repealing Council Regulation (EC) No 1348/2000 (OJ L 324, 10.12.2007, p. 79). 

2  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 (OJ L 174, 27.6.2001, p. 1). 

3  Convention of 15 November 1965 on the service abroad of judicial and extrajudicial documents in civil or 

commercial matters;  
Convention of 18 March 1970 on the taking of evidence abroad in civil or commercial matters. 

4  The  Regulations  apply  to  all  EU  Member  States  except  Denmark.  Denmark  has  concluded  a  parallel 
agreement  on  19  October  2005  with  the  European  Community  on  the  service  of  judicial  and  extrajudicial 
documents  in  civil  or  commercial  matters,  which  extends  the  provisions  of  the  Regulation  on  service  of 
documents  and  its  implementing  measures  to  Denmark.  The  agreement  entered  into  force  on  1  July  2007 
(See OJ L 300 of 17.11.2005, p. 55; OJ L 120, 5.5.2006, p. 23). There is no parallel agreement concerning 
the taking of evidence. 

5  These  figures  reflect  estimates  from  Deloitte’s  economic  study  supporting  the  impact  assessment.  The 
estimates are based on data from Eurostat, the Council of Europe European Commission for the efficiency of 
justice (CEPEJ) and the European Commission, and information gathered in the course of the interviews. The 
study  was  contracted  to  Deloitte  under  contract  no. JUST/2017/JCOO/FW/CIVI/0087  (2017/07).  The  final 
report is not yet published. 

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improved  on  the  relevant  Hague  Convention  by  putting  in  place  a  modern  and  efficient 
system  of  direct  dealings  between  courts  (transmission  of  requests  and  re-transmission  of 
evidence  taken)  and  replacing  the  cumbersome  system  whereby  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  vice versa  on the 
way back). It also allows for the direct taking of evidence by courts in other Member States. 

In  2017,  to  support  relevant,  comprehensive and  up-to-date  analysis  and  conclusions  on  the 
practical  operation  of  the  Regulation  (complementing  findings  from  other  evaluation 
exercises6), the Commission undertook a regulatory fitness (REFIT) evaluation, in line with 
the better regulation guidelines, to assess the operation of the instrument in relation to the five 
key  mandatory  evaluation  criteria  of  effectiveness,  efficiency,  relevance,  coherence  and  EU 
added value.  

The findings of the REFIT evaluation report were used as a basis for the problem definition in 
the impact assessment accompanying the present proposal. According to the report,  contacts 
between  the  bodies  designated  by  the  Regulation  are  still  almost  exclusively  paper-based, 
with adverse impacts on cost and effectiveness. Also, videoconferencing is rarely used to hear 
persons  in  another  Member  State.  The  proposal  therefore  addresses  the  need  for 
modernisation,  in  particular  digitalisation  and  the  use  of  modern  technology  in  the 
cross-border taking of evidence. It also addresses the following other problems highlighted by 
the evaluation: delays and costs for citizens, businesses and Member States, shortcomings in 
the protection of procedural rights and legal complexity and uncertainty. 

The  proposal  aims  to  improve  the  smooth  functioning  of  the  area  of  freedom,  security  and 
justice, and of the internal market, by increasing the efficiency and speed of the cross-border 
taking  of  evidence.  It  will  achieve  this  by  adapting  Regulation  (EC)  No  1206/2001  to 
technical developments, exploiting the advantages of digitalisation and ensuring that more use 
is  made  of  videoconferencing.  The  initiative  increases  legal  certainty  and  thereby  helps  to 
avoid delays and undue costs for citizens, businesses and public administrations and addresses 
shortcomings in the protection of parties’ procedural rights. 

• 

Consistency with existing policy provisions in the policy area 

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), as 
governed by Regulation (EC) No 1393/2007.   

The  proposal  is  consistent  with  existing  Union  instruments  in  the  area  of  civil  judicial 
cooperation. Regulation (EC) No 1206/2001 is without prejudice to the possible exchange of 
information  between  authorities  under  systems  established  by  the  Brussels IIa7  and 
Maintenance  Regulations8,  even  where  that  information  has  evidentiary  value,  so  the 
requesting authority is free to choose the most suitable method. 

6  See footnote 5. 
7  Council  Regulation  (EC)  No  2201/2003  of  27  November  2003  concerning  jurisdiction  and  the  recognition 
and  enforcement  of  judgments  in  matrimonial  matters  and  the  matters  of  parental  responsibility,  repealing 
Regulation (EC) No 1347/2000 (OJ L 338, 23.12.2003, p. 1). 

8  Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and 
enforcement of decisions and cooperation in matters relating to maintenance obligations (OJ L 7, 10.1.2009, 
p. 1). 

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• 

Consistency with other Union policies 

The  proposed  Regulation  is  part  of  the  EU  framework  on  judicial  cooperation  in  civil  and 
commercial matters and contributes to the EU’s objective of establishing an area of freedom, 
security and justice, as defined in Article 3(2) of the Treaty on European  Union (TEU) and 
Article 67 of the Treaty on the Functioning of the European Union (TFEU). In this context, 
the EU is to develop judicial cooperation in civil and commercial matters with cross-border 
implications  based  on  the  principle  of  mutual  recognition  of  judgments  and  decisions,  as 
stipulated  in  Article  81  TFEU.  The  Regulation  also  contributes  to  the  EU’s  objective  of 
establishing an internal market (Article 26 TFEU). 

The  EU  justice  agenda  for  2020  stresses  that,  in  order  to  enhance  mutual  trust  between 
Member  States’  justice  systems,  the  need  to  reinforce  civil  procedural  rights  should  be 
examined,  for  example  as  regards  the  taking  of  evidence9.  The  aim  of  improving  the 
framework of judicial cooperation within the EU is also in line with the objectives set out by 
the  Commission  in  the  digital  single  market  strategy10:  in  the  context  of  e-government,  the 
strategy  expresses  the  need  for  more  action  to  modernise  public  (including  judicial) 
administration,  achieve  cross-border  interoperability  and  facilitate  easy  interaction  with 
citizens. 

Accordingly,  the  Commission  undertook  in  its  work  programme  for  2018  to  prepare  a 
proposal revising the Regulation on the taking of evidence11. 

2. 

• 

LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY 

Legal basis 

The  legal  basis  of  the  proposal  is  Article  81  TFEU  (judicial  cooperation  in  civil  matters 
having cross-border implications). Point (d) in Article 81(2) grants the EU the power to adopt 
measures aimed at ensuring cooperation in the taking of evidence. 

• 

Subsidiarity (for non-exclusive competence) 

The problems to be tackled by the initiative arise in cross-border judicial proceedings (which 
by definition are beyond the reach of national legal systems) and stem either from insufficient 
cooperation between the courts of the Member States or from insufficient interoperability and 
coherence  between  domestic  systems  and  legal  environments.  Rules  in  the  area  of  private 
international  law  are  laid  down  in  regulations,  because  that  is  the  only  way  to  ensure  the 
desired uniformity. While in principle nothing prevents Member States from digitalising the 
way  they  communicate,  past  experience  and  projections  of  what  will  happen  without  EU 
action  show  that  progress  would  be  very  slow  and  that,  even  where  Member  States  take 
action, interoperability cannot be ensured without a framework under EU law. The objective 
of the  proposal can therefore not  be sufficiently achieved by the Member States themselves 
and can be achieved only at Union level.  

9  The EU justice agenda for 2020: strengthening trust, mobility and growth within the Union (COM(2014) 144 

final), p. 8. 

10  COM(2015) 192 final, 6.5.2015, p. 16. 
11  Commission  work  programme  2018:  an  agenda  for  a  more  united,  stronger  and  more  democratic  Europe 

(COM(2017) 650 final, 24.10.2017), Annex II, points 10 and 11. 

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The EU added value lies in further improving the efficiency and speed of judicial procedures, 
by simplifying and accelerating cooperation mechanisms with regard to the taking of evidence 
and thus improving the administration of justice in cases with cross-border implications. 

• 

Proportionality 

The  proposal  complies  with  the  principle  of  proportionality,  because  it  is  strictly  limited  to 
what  is  necessary  to  achieve  its  objectives.  It  does  not  interfere  with  the  divergent  national 
arrangements for the taking of evidence. 

3. 

• 

RESULTS 
CONSULTATIONS AND IMPACT ASSESSMENTS 

EVALUATIONS, 

EX POST 

OF 

STAKEHOLDER 

Ex post evaluations/fitness checks of existing legislation 

The results of the  ex post  evaluation of Regulation  (EC) No 1206/2001,  which accompanies 
the impact assessment, can be summarised as follows: 

Overall,  the  Regulation  has  made  a  contribution  to  achieving  its  general,  specific  and 
operational  objectives.  The  introduction  of  common  methods  for  taking  evidence  has  been 
welcomed by practitioners. The introduction of standard forms and communication channels 
has  facilitated  communication.  The  Regulation  has  improved  the  efficiency  of  legal 
proceedings  —  both  as  compared  with  the  Hague  Convention  and  over  time  between  2001 
and  2017.  It  thus  contributes  to  an  area  of  freedom,  security  and  justice,  and  the  smooth 
functioning  of  the  internal  market.  It  increases  mutual  trust  between  courts  and  helps  to 
reduce the burden for citizens and businesses engaged in cross-border proceedings. 

A number of obstacles have been identified that indicate that there is room for improvement. 
These obstacles relate overwhelmingly to delays and costs for businesses and citizens caused 
by failure to exploit the potential of modern technologies for speedier communication and the 
direct  taking  of  evidence.  The  most  striking  examples  are  failure  to  use  electronic 
communication in exchanges between Member States’ courts and authorities, which are still 
predominantly paper-based, and the marginal  use  of electronic communication, in  particular 
videoconferencing,  for  the  direct  taking  of  evidence.  The  Regulation  does  not  currently 
require the uptake of modern technologies in the judiciary; the fact that this depends entirely 
on  Member  States’  individual  efforts  and  the  overall  move  towards  digitalisation has  led  to 
very  slow  progress,  in  absolute  terms  and  also  in  comparison  with  the  use  of  modern 
technologies in domestic settings. 

• 

Stakeholder consultations 

The  Commission  conducted  an  extensive  consultation  of  stakeholders.  A  single  public 
consultation  from  8  December  2017  to  2  March  2018  addressed  both  Regulation  (EC) 
No 1393/2007 and Regulation (EC) No 1206/2001. A total of 131 contributions were received 
(particularly  from  Poland,  followed  by  Germany,  Hungary  and  Greece).  Two  dedicated 
meetings  of  the  European  Judicial  Network  addressed  practical  problems  and  possible 
improvements  of  both  Regulations.  Dedicated  meetings  were  held  with  Member  States’ 
governmental  experts.  A  workshop  was  held  for  selected  stakeholders  with  a  particular 
interest in issues relating to cross-border legal proceedings. The results of these consultations 
were generally positive and revealed a need for action.  

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In  addition,  the  Commission  maintained  a  regular  dialogue  with  stakeholders  and  Member 
States via the  Council’s expert group on the e-service of documents and e-communications, 
which meets four to six times a year. 

• 

Collection and use of expertise 

An expert group on the modernisation of judicial cooperation in civil and commercial matters 
held six meetings between January and April 2018. A 2016 study by a consortium led by the 
University of Maribor delivered a comparative analysis of the law of evidence in 26 Member 
States12. 

• 

Impact assessment 

This proposal is supported by the impact assessment in the accompanying staff working document 
SWD(2018) 285. 

A  range  of  options  was  considered,  from  non-legislative  action  to  legislative  action  with 
various levels of ambition. 

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

–  using  electronic  transmission  as  the  default  channel  for  electronic  communication 

and document exchanges;  

–  promoting modern means of taking evidence  such as videoconferencing if a person 
needs  to  be  heard  from  another  Member  State  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; 

–  tackling divergent interpretations of the term ‘court’; 

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

–  best practices for competent courts, to help them apply the procedures properly and 

without delay; and 

–  raising  courts’  and  legal  professionals’  awareness  of  the  availability  of  the  direct 

channel of taking evidence under the Regulation. 

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. The recommendations 
of the Board were taken into account. In particular, the revised version of the report explains 
better the relationship between the two initiatives concerning judicial cooperation (service of 
documents  and  taking  of  evidence),  the  wider  context  and  the  reasons  why  the  Regulation 
represents  a  significant  step  forward  compared  to  the  Hague  Convention  on  the  Taking  of 
Evidence.  Furthermore,  the  major  problems  and  the  baseline  are  better  identified  and 
explained and the sections on subsidiarity and EU added value were improved. Moreover, the 
conclusions  of  the  evaluation  regarding  the  effectiveness  were  further  developed  and  the 

12  http://www.acj.si/en/presentation-evidence 

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assessment of the policy options focusses on the main issues (electronic communication and 
the use of video-conferencing). 

• 

Regulatory fitness and simplification 

The initiative is included in the Commission’s 2018 work programme under REFIT initiatives 
in the area of justice and fundamental rights based on mutual trust13. 

Through  the  REFIT  platform,  stakeholders  recommended  that  the  Commission  explore  the 
scope for expediting the taking of evidence in other Member States. 

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  would 
thus stimulate cross-border business and enhance the functioning of the internal market. For 
Member  States,  electronic  transmission  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  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. 

The Regulation will also provide for the mutual recognition of digital evidence. This will not 
only reduce the burden for citizens and business in proceedings, but also limit the instances 
where electronic evidence is rejected. 

• 

Fundamental rights 

In line with the EU justice agenda for 2020, the proposal addresses the need to reinforce civil 
procedural rights, in order to enhance mutual trust between Member States’ justice systems. 

introduction  of  electronic  means  of  communication  and 

The 
videoconferencing are expected to improve citizens’ and businesses’ access to justice. 

the  greater  use  of 

The  proposed  digitalisation  measures  take  into  account  the  requirements  of  data  protection 
and  privacy:  the  system  to  be  introduced  for  electronic  exchanges  between  the  designated 
courts  should  feature  a  fully  reliable  and  secure  technical  solution  that  ensures  the  integrity 
and privacy of the transmitted data. A pre-defined set of users of the system (only Member 
States’ courts and judicial authorities) gives an additional guarantee that personal data will be 
handled  appropriately.  Furthermore,  the  system  should  introduce  a  decentralised  structure, 
enabling communication directly between its end-points and thus reducing risk by minimising 
the number of data processors. 

Important external factors with regard to the protection of personal data in the context of the 
proposed policy package are: 

– 

the  General  Data  Protection  Regulation  (GDPR)14,  applied  as  of  May  2018,  which 
should increase awareness and prompt action to ensure the security and integrity of 
databases, and swift reactions to breaches of privacy in the judiciary; and 

13  Commission  work  programme  2018:  an  agenda  for  a  more  united,  stronger  and  more  democratic  Europe 

(COM(2017) 650 final, 24.10.2017), Annex II, point 10, p. 4. 

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–  persistent threats to cybersecurity in the public sector. Attempted attacks on public IT 
infrastructure  are  expected  to  proliferate  and  to  affect  the  judiciary  in  the  Member 
States;  their  impact  may  be  exacerbated  by  the  growing  interconnectedness  of  IT 
systems (nationally and at EU level). 

Implementation plans and monitoring, evaluation and reporting arrangements 

In  line  with  paragraphs  22  and  23  of  the  Interinstitutional  Agreement  of  13  April  201615, 
where  the  three  institutions  confirmed  that  evaluations  of  existing  legislation  and  policy 
should provide the basis for impact assessments of options for further action, the Regulation 
will  be  evaluated  and  the  Commission  will  submit  a  report  to  the  European  Parliament,  the 
Council  and  the  European  Economic  and  Social  Committee  at  the  latest  five  years  after 
application date. The evaluation will assess the effects of the Regulation on the ground based 
on  indicators  and  a  detailed  analysis  of  the  degree  to  which  the  Regulation  can  be  deemed 
relevant, effective, efficient, provides enough EU added value and is coherent with other EU 
policies.  The  evaluation  will  include  lessons  learnt  to  identify  any  lacks/problems  or  any 
potential  to  further  improve  the  impact  of  the  Regulation.  Member  States  will  provide  the 
Commission with the information necessary for the preparation of the report. 

4. 

BUDGETARY IMPLICATIONS 

The proposal will not impose significant costs on national administrations, but rather lead to 
savings. National authorities are expected to benefit from more efficient legal proceedings and 
reduced administrative burdens and labour costs.  

Costs  relating 
implementation  and  maintenance  of  electronic 
communication  and  document  exchanges,  and  to  the  acquisition,  implementation  and 
operation of professional, high-end videoconferencing equipment could be co-funded. 

the  development, 

to 

The  main  EU  funding  opportunities  under  the  current  financial  programmes  are  the  Justice 
programme and the Connecting Europe Facility (CEF). The Justice programme (2018 budget: 
EUR 45.95 million)  supports  enforcement  and  remedy  capacities  in  Member  States  in  the 
field of civil justice and its future funding priorities focus on these elements, which are also 
relevant for the current initiative. The CEF has a much larger budget (EUR 130.33 million in 
2018)  and  offers  financial  support  for  IT  projects  that  facilitate  cross-border  interaction 
between  public  administrations,  businesses  and  citizens.  It  is  already  used  widely  to  fund 
digitalisation and e-justice work in the field of civil justice, including the European e-justice 
portal  and  public  documents  integration  in  national  e-government  systems  and  the  Business 
Registers  Interconnection  System  (BRIS).  The  Multiannual  Financial  Framework  (MFF) 
package  for  the  digital  transformation  priority,  as  unveiled  on  2  May  2018,  includes 
EUR 3 billion for a digital strand of the CEF, to finance digital connectivity infrastructure. 

14  Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection 
of natural persons with regard to the processing of personal data and on the free movement of such data, and 
repealing Directive 95/46/EC (OJ L 119, 4.5.2016, p. 1). 

Interinstitutional Agreement between the European Parliament, the Council of the European Union and 
the European Commission on Better Law-Making of 13 April 2016; OJ L 123, 12.5.2016, p. 1–14. 

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5. 

• 

OTHER ELEMENTS 

Implementation plans and monitoring, evaluation and reporting arrangements 

Sound  arrangements  will  be  put  in  place  for  the  monitoring  of  the  Regulation,  including  a 
comprehensive  set  of  qualitative  and  quantitative  indicators,  and  a  clear  and  structured 
reporting  and  monitoring  process.  This  is  important  for  ensuring  that  the  amendments  are 
implemented  efficiently  in  the  Member  States  and  verifying  whether  the  Regulation  is 
successful in achieving its objectives. 

• 

Detailed explanation of the specific provisions of the proposal 

Article 1(4) 

Currently, the term ‘court’ is not defined and this has led to diverging interpretations among 
Member  States.  Some  take  it  as  referring  only  to  traditional  tribunals,  while  others  also 
execute requests  from  other  judicial  authorities  (e.g.  notaries  public)  if  they  are  empowered 
under their national laws to perform tasks of taking of evidence. These uncertainties should be 
eliminated by a definition of the concept of ‘court’. 

Article 6  

This amendment introduces the mandatory electronic transmission, as a rule, of requests and 
communications pursuant to the Regulation (paragraph 1). In exceptional cases, i.e. where the 
system  is  interrupted  or  not  suitable  for  the  transmission  in  question  (e.g.  transmission  of  a 
DNA sample as evidence), other channels can still be used (paragraph 4). 

Articles 17 and 17a 

The purpose of the proposed amendments is to ensure a more appropriate, more frequent and 
faster  use  of  direct  taking  of  evidence  in  accordance  with  Article  17  via  videoconference, 
where  available  to  the  courts  in  question  and  appropriate  in  the  light  of  the  specific 
circumstances of the case. 

Article 17b 

The purpose of this new Article is to facilitate the taking of evidence by diplomatic officers or 
consular  agents.  The  Article  provides  that  such  persons  may,  in  the  territory  of  another 
Member State and in the area where they exercise their functions, take evidence without the 
need  for  a  prior  request,  by  hearing  nationals  of  the  Member  State  which  they  represent 
without compulsion in the context of proceedings pending in the courts of that Member State. 

Article 18a 

This  new  Article  is  to  ensure  that  digital  evidence  taken  in  accordance  with  the  law  of  the 
Member State where it was taken is not rejected as evidence in other Member States solely 
due to its digital nature. 

Articles 19 and 20 

These amendments bring the Regulation into line with Article 290 TFEU. 

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Article 22a  

This  provision  sets  out  that  the  Commission  shall  establish  a  detailed  programme  for 
monitoring the outputs, results and impacts of this Regulation. 

Article 23  

This provision sets out that the Commission shall carry out an evaluation of this Regulation in 
line with the Commission's better regulation Guidelines and pursuant to paragraph 22 and 23 
of  the  Interinstitutional  Agreement  of  13  April  2016,  and  present  a  Report  on  the  main 
findings  to  the  European  Parliament,  the  Council  and  the  European  Economic  and  Social 
Committee. 

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2018/0203 (COD) 

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 

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
Article 81 thereof, 

Having regard to the proposal from the European Commission, 

After transmission of the draft legislative act to the national parliaments, 
Having regard to the opinion of the European Economic and Social Committee1, 

Acting in accordance with the ordinary legislative procedure, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

(5) 

1 
2 

3 

4 

In  the  interests  of  the  proper  functioning  of  the  internal  market,  it  is  necessary  to 
further improve and expedite cooperation between courts in the taking of evidence. 
Council Regulation (EC) No 1206/20012 lays down rules on cooperation between the 
courts of the Member States in the taking of evidence in civil or commercial matters. 

In  order  to  ensure  speedy  transmission  of  requests  and  communications,  all 
appropriate  means  of  modern  communication  technology  should  be  used.  Therefore, 
as  a  rule,  all  communication  and  exchanges  of  documents  should  be  carried  out 
through a decentralised IT system composed of national IT systems.  

In  order  to  ensure  mutual  recognition  of  digital  evidence  such  evidence  taken  in  a 
Member State in accordance with its law should not be denied recognition as evidence 
in other Member States only because of its digital nature. 

Regulation  (EC)  No  1206/2001  should  be  without  prejudice  to  the  possibility  for 
authorities  to  exchange  information  under  systems  established  by  other  Union 
instruments,  such  as  Council  Regulation  (EC)  No  2201/20033  or  Council  Regulation 
(EC) No 4/20094, even where that information has evidentiary value, thus leaving the 
choice of the most suitable method to the requesting authority. 

OJ C , , p. . 
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 (OJ L 174, 27.6.2001, p. 1). 
Council  Regulation  (EC)  No  2201/2003  of  27  November  2003  concerning  jurisdiction  and  the 
recognition  and  enforcement  of  judgments  in  matrimonial  matters  and  the  matters  of  parental 
responsibility, repealing Regulation (EC) No 1347/2000 (OJ L 338, 23.12.2003, p. 1). 
Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition 
and enforcement of decisions and cooperation in matters relating to maintenance obligations (OJ L 7, 
10.1.2009, p. 1). 

EN 

10 

  EN 

 
                                                 
(6)  Modern  communications  technology,  in  particular  videoconferencing  which  is  an 
important  means  to  simplify  and  accelerate  the  taking  of  evidence,  is  currently  not 
used to its full potential. Where evidence is to be taken by hearing a person domiciled 
in  another  Member  State  as  witness,  party  or  expert,  the  court  should  take  that 
evidence  directly  via  videoconference,  if  available  to  the  respective  courts,  where  it 
deems the use of such technology appropriate on account of the specific circumstances 
of the case. 

(7) 

(8) 

(9) 

(10) 

(11) 

In order to facilitate the taking of evidence by diplomatic officers or consular agents, 
such persons may, in the territory of another Member State and within the area where 
they  exercise  their  functions,  take  evidence  without  the  need  for  a  prior  request  by 
hearing nationals of the Member State which they represent without compulsion in the 
context  of  proceedings  pending  in  the  courts  of  the  Member  State  which  they 
represent. 

Since the objectives of this Regulation cannot be sufficiently achieved by the Member 
States  and  can  rather,  by  reason  of  the  creation  of  a  legal  framework  ensuring  the 
speedy  transmission  of  requests  and  communications  concerning  the  performance  of 
taking of evidence, be better achieved at Union level, the Union may adopt measures, 
in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on 
the European Union. In accordance with the principle of proportionality, as set out in 
that Article, this Regulation does not go beyond what is necessary in order to achieve 
that objective. 

In accordance with Article 3 and Article 4a(1) of protocol No 21 on the position of the 
United  Kingdom  and  Ireland  in  respect  of  the  area  of  freedom,  security  and  justice, 
annexed  to  the  Treaty  on  European  Union  and  the  Treaty  on  the  Functioning  of  the 
European  Union,  the  [United  Kingdom]  [and]  [Ireland]  [have/has  notified  their/its 
wish to take part in the adoption and application of the present Regulation] [are/is not 
taking part in the adoption of this Regulation and is not bound by it or subject to its 
application]. 

In  accordance  with  Articles  1  and  2  of  Protocol  No  22  on  the  position  of  Denmark, 
annexed  to  the  Treaty  on  European  Union  and  the  Treaty  on  the  Functioning  of  the 
European Union, Denmark is not taking part in the adoption of this Regulation and is 
not bound by it or subject to its application. 

In order to update the standard forms in the Annexes or to make technical changes to 
those forms, the power to adopt acts in accordance with Article 290 of the Treaty on 
the  Functioning  of  the  European  Union  should  be  delegated  to  the  Commission  in 
respect  of  amendments  to  the  Annexes.  It  is  of  particular  importance  that  the 
Commission carry out appropriate consultations during its preparatory work, including  
at  expert  level,  and  that  those  consultations  be  conducted  in  accordance  with  the 
principles  laid  down  in  the  Interinstitutional  Agreement  of  13  April  2016  on  Better 
Law-Making*.  In  particular,  to  ensure  equal  participation  in  the  preparation  of 
delegated acts, the European Parliament and the Council receive all documents at the 
same time as Member  States' experts, and their experts systematically have access to 
meetings of Commission expert groups dealing with the preparation of delegated acts. 

---------------------------- 

*Interinstitutional  Agreement  between  the  European  Parliament,  the  Council  of  the 
European  Union  and  the  European  Commission  on  Better  Law-Making  of  13  April 
2016; OJ L 123, 12.5.2016, p. 1. 

EN 

11 

  EN 

 
(12) 

In  accordance  with  paragraphs  22  and  23  of  the  Interinstitutional  Agreement  of  13 
April  2016  on  Better  Law-Making,  the  Commission  should  evaluate  this  Regulation 
on  the  basis  of  information  collected  through  specific  monitoring  arrangements  in 
order to assess the actual effects of the Regulation and the need for any further action.  

(13)  Regulation (EC) No 1206/2001 should therefore be amended accordingly, 

HAVE ADOPTED THIS REGULATION: 

Regulation (EC) No 1206/2001 is amended as follows: 

Article 1 

(1) 

In Article 1, the following paragraph 4 is added:  

´4. In this Regulation, the term ´court´ shall mean any judicial authority in a Member State 
which  is  competent  for  the  performance  of  taking  of  evidence  according  to  this 
Regulation.´; 

(2) 

Article 6 is replaced by the following:  

1. 

2. 

3. 

4. 

´Article 6 
Transmission of requests and other communications 

Requests  and  communications  pursuant  to  this  Regulation  shall  be  transmitted 
through  a  decentralised  IT  system  composed  of  national  IT  systems  interconnected 
by  a  communication  infrastructure  enabling  the  secure  and  reliable  cross-border 
exchange of information between the national IT systems. 

The  general  legal  framework  for  the  use  of  trust  services  set  out  in  Council 
Regulation  (EU)  No  910/20145  shall  apply  to  the  requests  and  communications 
transmitted through the decentralised IT system referred to in paragraph 1.  

Where requests and communications referred to in paragraph 1 require or feature a 
seal  or  handwritten  signature,  ´qualified  electronic  seals´  and  ´qualified  electronic 
signatures´ as defined in Regulation (EU) No 910/2014 of the European Parliament 
and of the Council may be used instead. 

If transmission in accordance with paragraph 1 is not possible due to an unforeseen 
and exceptional disruption of the decentralised IT system or where such transmission 
is  not  possible  in  other  exceptional  cases,  transmission  shall  be  carried  out  by  the 
swiftest  possible  means,  which  the  requested  Member  State  has  indicated  it  can 
accept. 

(3) 

Article 17 is amended as follows: 

(a)  paragraph 2 is deleted; 

(b) 

 in paragraph 4, the third subparagraph is replaced by the following: 

5 

Regulation  (EU)  No  910/2014  of  the  European  Parliament  and  of  the  Council  of  23 July  2014  on 
electronic  identification  and  trust  services  for  electronic  transactions  in  the  internal  market  and 
repealing Directive 1999/93/EC (OJ L 257, 28.8.2014, p. 73). 

EN 

12 

  EN 

 
 
 
                                                 
´Where  within  30  days  of  sending  the  request,  the  requesting  court  has  not 
received information as to whether the request has been accepted, the request 
shall be considered to have been accepted.´; 

(4) 

the following Article 17a is inserted: 

´Article 17a 

Direct taking of evidence by videoconference 

1. 

2. 

Where  evidence  is  to  be  taken  by  hearing  a  person  domiciled  in  another  Member 
State as witness, party or expert and the court does not request the competent court of 
another Member State to take evidence in accordance with Article 1(1)(a), the court 
shall  take  evidence  directly  in  accordance  with  Article  17  via  videoconference,  if 
available  to  the  respective  courts,  where  it  deems  the  use  of  such  technology 
appropriate on account of the specific circumstances of the case.  

Where  a  request  for  direct  taking  of  evidence  via  videoconference  is  made,  the 
hearing shall be held in the premises of a court. The requesting court and the central 
body  or  the  competent  authority  referred  to  in  Article  3(3)  or  the  court  on  whose 
premises  the  hearing is to  be held shall agree on the practical arrangements  for the 
videoconference. 

3. 

Where evidence is taken by videoconference: 

(a) 

(b) 

the  central  body  or  the  competent  authority  referred  to  in  Article  3(3)  in  the 
requested Member State may assign a court to take part in the performance of 
the taking of evidence in order to ensure respect for the fundamental principles 
of the law of the requested Member State; 

if necessary, at the request of the requesting court, the person to be heard or the 
judge  in  the  requested  Member  State  participating  in  the  hearing,  the  central 
body or the competent authority referred to in Article 3(3) shall ensure that the 
person to be heard or the judge are assisted by an interpreter.´; 

(5) 

the following Article 17b  is inserted: 

´Article 17b 

Taking of evidence by diplomatic officers or consular agents 

Diplomatic  officers  or  consular  agents  of  a  Member  State  may,  in  the  territory  of 
another  Member  State  and  within  the  area  where  they  exercise  their  functions,  take 
evidence  without  the  need  for  a  prior  request  pursuant  to  Article  17(1),  by  hearing 
nationals of the Member State which they represent without compulsion in the context 
of proceedings pending in the courts of the Member State which they represent.´; 

(6) 

the following Section 6 is inserted after Article 18: 

EN 

13 

  EN 

 
 
 
 
 
 
 
 
´Section 6 

Mutual recognition 

Article 18a 

Digital evidence taken in a Member State in accordance with its law shall not be denied 
the quality of evidence in other Member States solely due to its digital nature.´; 

(7) 

in Article 19, paragraph 2 is replaced by the following: 

´2. The Commission is empowered to adopt delegated acts in accordance with Article 20 
to amend the Annexes to update the standard forms or to make technical changes to those 
forms.´;  

(8) 

Article 20 is replaced by the following: 

´Article 20 

Exercise of the delegation 

The  power  to  adopt  delegated  acts  is  conferred  on  the  Commission  subject  to  the 
conditions laid down in this Article. 

The power to adopt delegated acts referred to in Article 19(2) shall be conferred on 
the Commission for an indeterminate period of time from … [date of entry into force 
of this Regulation]. 

The delegation of power referred to in Article 19(2) may be revoked at any time by 
the European Parliament or by the Council. A decision to revoke shall put an end to 
the  delegation  of  the  power  specified  in  that  decision.  It  shall  take  effect  the  day 
following  the  publication  of  the  decision  in  the  Official  Journal  of  the  European 
Union  or  at  a  later  date  specified  therein.  It  shall  not  affect  the  validity  of  any 
delegated acts already in force. 

Before adopting a delegated act, the Commission shall consult experts designated by 
each  Member  State 
the 
in  accordance  with 
Interinstitutional Agreement of 13 April 2016 on Better Law-Making6. 

the  principles 

laid  down 

in 

As soon as it adopts a delegated act, the Commission shall notify it simultaneously to 
the European Parliament and to the Council. 

1. 

2. 

3. 

4. 

5. 

6  OJ L 123, 12.5.2016, p. 1. 

EN 

14 

  EN 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
(9) 

A  delegated  act  adopted  pursuant  to  Article  19(2)  shall  enter  into  force  only  if  no 
objection  has  been  expressed  either  by  the  European  Parliament  or  by  the  Council 
within a period of two months of notification of that act to the European Parliament 
and the Council or if, before the expiry of that period, the European Parliament and 
the  Council  have  both  informed  the  Commission  that  they  will  not  object.  That 
period shall be extended by two months at the initiative of the European Parliament 
or of the Council.´ 

(10) 

The following Article 22a is inserted: 

´Article 22a 

Monitoring 

1. 

2. 

3. 

By  [two  years  after  the  date  of  application]  at  the  latest,  the  Commission  shall 
establish a detailed programme for monitoring the outputs, results and impacts of this 
Regulation. 

The  monitoring  programme  shall  set  out  the  means  by  which  and  the  intervals  at 
which the data and other necessary evidence are to be collected. It shall specify the 
action  to  be  taken  by  the  Commission  and  by  the  Member  States  in  collecting  and 
analysing the data and other evidence. 

Member  States  shall  provide  the  Commission  with  the  data  and  other  evidence 
necessary for the monitoring.´ 

(11) 

Article 23 is replaced by the following:  

´Article 23 

Evaluation 

1. 

2. 

No  sooner  than  [five  years  after  the  date  of  application  of  this  Regulation],  the 
Commission shall carry out an evaluation of this Regulation and present a report on 
the  main  findings  to  the  European  Parliament,  the  Council  and  the  European 
Economic and Social Committee.  

Member States shall provide the Commission with the information necessary for the 
preparation of that report.´ 

Article 2 

This Regulation shall enter into force on the twentieth day following that of its publication in 
the Official Journal of the European Union. 

It shall apply from […].  

However, point 2 of Article 1 shall apply from … [24 months after the entry into force].  

EN 

15 

  EN 

 
 
 
 
 
 
 
This Regulation shall be binding in its entirety and directly applicable in the Member States in 
accordance with the Treaties. 

Done at Brussels, 

For the European Parliament 
The President 

For the Council 
The President 

EN 

16 

  EN