COMMISSION STAFF WORKING DOCUMENT IMPACT ASSESSMENT Accompanying the document Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending Council Regulation (EC) No 1206/2001 of 28 May 2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters
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

EN 

  EN 

   EUROPEAN COMMISSION  Brussels, 31.5.2018 SWD(2018) 285 final  COMMISSION STAFF WORKING DOCUMENT  IMPACT ASSESSMENT  Accompanying the document Proposal for a   REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL  amending Council Regulation (EC) No 1206/2001 of 28 May 2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters  {COM(2018) 378 final} - {SEC(2018) 271 final} - {SWD(2018) 284 final}  
 
 
Table of contents 

INTRODUCTION: POLITICAL AND LEGAL CONTEXT 

PROBLEM DEFINITION 

1. 

2. 

2.1. 

Problem tree 

2.2.  What are the problems? 

2.2.1. 
2.2.2. 

Shortcomings in the protection of rights of defence and legal uncertainty 
Delays and undue costs for citizens, businesses and public administrations 

2.3.  What are the problem drivers? 

2.3.1. 
2.3.2. 
2.3.3. 
2.3.4. 

Preparation of the request and taking of evidence and transmission of the request 
Decision about the validity of a request 
Taking of evidence 
Confirmation 

3. 

WHY SHOULD THE EU ACT? 

3.1. 

Legal basis 

3.2. 

Subsidiarity 

4. 

5. 

6. 

OBJECTIVES: WHAT IS TO BE ACHIEVED? 

WHAT ARE THE AVAILABLE POLICY OPTIONS? 

WHAT ARE THE IMPACTS OF THE POLICY OPTIONS? 

6.1. 

Assessment of the core options 

Assessment of the options for the problem ‘method of taking evidence requested not 

6.1.1. 
available in the requested Member State’, e.g. video-conferencing’ 

6.1.1.1. 

 Option 1.1 

3 

7 

7 

9 
9 
9 

12 
12 
16 
17 
17 

17 

17 

18 

18 

20 

23 

26 

26 

26 

6.1.1.2  Options 1.2 (a) and 1.2 (b) 

28 
Assessment of the options for the problems ‘‘Paper-based communication between courts is 

6.1.2. 
time-consuming and costly’, and ‘Legal barriers to the acceptance of electronic (digital) evidence 
produced or stored in another Member State’ 

6.1.2.1  Option 2.1 

6.1.2.2 

 Option 2.2 (a) and 2.2 (b) 

6.1.2.3  Option 2.3 

30 

30 

31 

33 

7. 

COMBINED EFFECTS OF THE PREFERRED OPTIONS AS A PACKAGE 

34 

7.1. 

Baseline scenario 

34 

1 

 
 
7.2. 

Policy Package 

7.3. 

Impacts on fundamental rights and the protection of personal data 

35 

38 

CONCLUSION AND EVALUATION AND MONITORING FRAMEWORK 

39 

8. 

9. 

REFIT (SIMPLIFICATION AND IMPROVED EFFICIENCY) 

ANNEX 1: PROCEDURAL INFORMATION 

ANNEX 2: STAKEHOLDER CONSULTATION 

ANNEX 3: WHO IS AFFECTED AND HOW? 

ANNEX 4: ANALYTICAL METHODS 

ANNEX 5: TABLES WITH ASSESSMENT OF OPTIONS FOR PROBLEMS 

ANNEX 6: ASSESSMENT OF IMPACTS OF BASELINE SCENARIO 

ANNEX 7: ASSESSMENT OF IMPACTS OF POLICY PACKAGE 

ANNEX 8: CONCLUSIONS OF THE EVALUATION OF REGULATION (EC) 
1206/2001 

ANNEX 9: EVALUATION REPORT 

1. 

2. 

3. 

4. 

5. 

6. 

INTRODUCTION 

BACKGROUND TO THE INTERVENTION 

IMPLEMENTATION / STATE OF PLAY 

METHOD 

ANALYSIS AND ANSWERS TO THE EVALUATION QUESTIONS 

CONCLUSIONS 

2 

42 

45 

49 

58 

66 

74 

125 

134 

154 

155 

3 

3 

10 

12 

13 

57 

 
 
 
1. 

INTRODUCTION: POLITICAL AND LEGAL CONTEXT 

The  EU  has  the  task  to  develop  the  European  area  of  justice  in  civil  matters  based  on 
principle of mutual trust and mutual recognition of judgements. The area of justice requires 
judicial cooperation over the borders. For this purpose, and for the proper functioning of the 
internal  market,  the  EU  has  adopted  legislation  on  cross-border  service  of  judicial 
documents1  and  on  cooperation  in  taking  of  evidence2.  These  are  crucial  instruments  to 
regulate  judicial  assistance  in  civil  and  commercial  matters  between  the  Member  States. 
Their  common  purpose  is  to  provide  an  efficient  framework  for  cross-border  judicial 
cooperation. They have replaced the earlier international, more cumbersome system of Hague 
conventions3 between the Member States4. 

This legislation on judicial cooperation has a substantial impact on the everyday lives of EU 
citizens  in  their  private  capacity  or  business  activity.  It  is  applied  in  judicial  proceeding 
having  cross-border  implications;  its  proper  functioning  in  these  concrete  cases  is 
indispensable for ensuring access to justice and a fair trial for the parties to the proceedings 
(e.g. the lack of proper service of the document initiating proceedings is by far the most often 
used ground for refusing the recognition and enforcement of judgments5). The efficiency of 
the  framework  of  international  judicial  assistance  has,  therefore,  a  direct  impact  on  the 
perception  of  the  citizens  involved  in  such  cross-border  disputes  on  the  function  of  the 
judiciary and the state of the rule of law in the Member States.  

Smooth cooperation between courts is also a necessary ingredient for the proper functioning 
of the internal market. In  2018, there are in  the European Union approximately 3.4 million 
civil  and  commercial  court  proceedings  with  cross-border  implications.6  In  many  of  these 
proceedings, the taking of evidence and service of documents in another Member State are of 
high  importance  for  ensuring  a  proper  administration  of  justice.  The  following  numbers 
demonstrate the relevance of the Regulations: in the area of commercial law, the number of 
problematic  transactions  in  business  to  consumer  relations  within  the  EU  amounts  to  18.6 
million  per  year,  whereas  the  number  of  cross-border  disputes  between  EU  businesses 
reaches a 1.2 million annually. In the area of family law, available figures relating  to cross-

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, pp. 79-120.   
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, 27.06.2001, pp. 1-24.   

3   The Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in 
Civil or Commercial Matters and the Convention of 18 March 1970 on the Taking of Evidence Abroad in 
Civil or Commercial Matters.   

4   The Regulations apply to all EU countries 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.   

5   An evaluation study of national procedural laws and practices in terms of their impact on the free 
circulation of judgments and on the equivalence and effectiveness of the procedural protection of 
consumers under EU consumer law (carried out by a consortium led by MPI Luxembourg), final report, 
June 2017, pp.60-61 (not published yet).   

6   2018 Deloitte study. 

3 

 
                                                            
border legal situations are also high: yearly 250.000 to 310.000 new international marriages 
are  concluded  in  the  EU,  whereas  the  number  of  international  divorces  is  between 100.000 
and 140.000 . Up to 230.000 children are born every year to international couples within the 
EU  and there are up to 588.000 successions with cross-border elements . 

This shows the importance of constant improvements in this area to make it easier for citizens 
and businesses to enforce their rights throughout the EU. 

The EU Justice Agenda for 2020 stressed that, in order to enhance mutual trust between the 
justice systems of the Member States of the EU, the need to reinforce civil procedural rights 
should be examined, for example as regards the taking of evidence.7 The aim of improving 
the framework of judicial cooperation within the EU is also in line with the objectives of the 
Commission set by the Digital Single Market Strategy8: in the context of e-Government, the 
Strategy  expresses  the  need  for  more  actions  to  modernise  public  (including  judicial) 
administration,  achieve  cross-border  interoperability  and  facilitate  easy  interaction  with 
citizens.  

In  its  Political  Guidelines,  President  Juncker  has  defined  the  need  for  a  better  judicial 
cooperation  among  one  of  the  10  priorities  of  the  Commission:  "as  citizens  increasingly 
study,  work,  do  business,  get  married  and  have  children  across  the  Union,  judicial 
cooperation among EU Member States must be improved step by step... so that citizens and 
companies can more easily exercise their rights across the Union". 

In line with this, the Commission has committed in its work programme for 2018 to prepare 
proposals  revising  the  Regulation  on  taking  of  evidence  and  the  Regulation  on  service  of 
documents.9 

Council Regulation (EC) 1206/2001 on cooperation between the courts of the Member States 
in  the  taking  of  evidence  in  civil  or  commercial  matters  is  an  important  instrument  for  the 
European judicial cooperation given that  it is  often crucial to present sufficient  evidence to 
the  court  to  prove  a  claim.  Regulation  (EC)  1206/2001  establishes  an  EU-wide  system  of 
direct  and  rapid  transmission  of  requests  for  the  taking  and  execution  of  evidence  between 
courts and establishes precise criteria as to the form and content of the request. In particular, 
the Regulation represents a big step forward to  

The Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters. 
This latter is a multilateral treaty signed in The Hague on 18 March 1970, which establishes 
methods for provision of testimony and documents between a signatory state where evidence 

7  The  EU  Justice  Agenda  for  2020  Strengthening  Trust,  Mobility  and  Growth  within  the  Union,  COM(2014) 
144 final, p. 8. 

8 COM(2015) 192 final of 6.5.2015, p. 16.   

9 Commission Work Programme 2018 – An agenda for a more united, stronger and more democratic Europe, 
COM(2017) 650 final of 24.10.2017, Annex II points 10 and 11.  

4 

 
                                                            
 
 
 
is  sought  and  another  signatory  state  where  evidence  is  located,  for  use  in  judicial 
proceedings  in  the requesting  state.  The  Convention  provides  for  the  taking  of  evidence  by 
means of: letters of request and diplomatic or consular agents and commissioners. Evidence 
is obtained by issuing a letter of request to the designated central authority of the signatory 
state where the evidence is located. In contrast with this system, the Regulation -put in place 
a modern and efficient system of direct dealings between courts (transmission of requests and 
of  re-transmission  of  the  evidence  taken),  and  replaced  between  Member  States  the 
cumbersome  Hague  system  in  which  requests  were  transmitted  from  the  court  in  Member 
State A to the central body in Member State A, then to the central body in Member State B 
and finally to the court in Member State B (and the same way back). It furthermore allows for 
the direct taking of evidence by courts in other Member States. 

This  Impact  Assessment  was  developed  on  the  basis  of  the  findings  of  the  retrospective 
evaluation  of  Regulation  (EC)  1206/2001  (with  which  it  was  developed  back  to  back)  – 
whose results are included in Annex E.  

It is also closely linked to the back to back Evaluation and Impact Assessment of Regulation 
(EC)  No  1393/2007  on  the  service  in  the  Member  States  of  judicial  and  extrajudicial 
documents  in  civil  or  commercial  matters  (service  of  documents)  which  was  developed  in 
parallel.  The  two  initiatives  are  closely  interlinked  between  themselves  as  they  suggest 
similar options in relation to digitalisation for service of documents and taking of evidence as 
the two main pillars of judicial cooperation. They are also both closely linked to the overall 
Commission  priority  of  digitalization and e-Justice and builds upon and  benefits of  already 
existing  EU  outputs  and  legal  standards  (e-CODEX,  eIDAS  Reg  etc.).  They  further  follow 
the suit of parallel work in the field of criminal justice in order to create a level playing field 
in  the  areas  of  criminal  and  civil  justice  alike.  The  Commission  has  recently  adopted  a 
proposal providing for a legislative framework on e-evidence, based on the Council's request 
in  its  June  2016  conclusions,  for  the  Commission  to  develop  a  platform  with  a  secure 
communication  channel  for  digital  exchanges  of  requests  for  electronic  evidence  under  the 
Directive on the European Investigation Order. This initiative is also closely interlinked with 
e-CODEX,  since  Member  State  experts  participating  in  the  development  of  the  platform 
reached the conclusion, after considering different options, that the e-CODEX system would 
be the most suitable system to be used for such an exchange of electronic evidence.  

A  series  of  activities  were  launched  to  help  evaluate  the  Regulation,  through  Commission 
studies and reports, as well as discussions within the European Judicial Network in civil and 
commercial matters (EJN): 

2012: 

  Study  on  the  application  of  articles  3(1)(C)  and  3,  and  articles  17  and  18    of  the 
Council Regulation (EC) No 1206/2001 of 28 May 2001 on cooperation between the 
courts of the Member States in the taking of evidence in civil or commercial matters 

5 

 
 
(launched  by  the  Commission,  carried  out  by  Mainstrat  and  the  University  of  the 
Basque Country) – final report adopted in June 201210; 

2013:  

  20 November 2013: meeting of the EJN dedicated to the evaluation of the application 

of the Regulation on taking of evidence;  

2014:  

  Extensive questionnaire (containing more than 50 questions, prepared in collaboration 
with  the  EJN)  to  the  Member  States  concerning  the  practical  operation  of  the 
Regulation on taking of evidence. 

2016:  

  Study  from  a  consortium  led  by  University  of  Maribor  (SI)  which  delivered  a 
comparative analysis of the law of evidence in 26 Member States (through an action 
grant under the EU Justice Programme, finished in spring 201611)  

  14-15  November  2016:  dedicated  meeting  of  the  EJN  addressing  practical  problems 

and possible improvements of the Regulation; 

2017: 

  A  Commission  study  evaluating  national  procedural  laws  and  practices  in  terms  of 
their  impact  on  the  free  circulation  of  judgments  and  on  the  equivalence  and 
effectiveness  of  the  procedural  protection  of  consumers  under  EU  consumer  law 
(carried  out  by  a  consortium  led  by  MPI  Luxembourg,  whose  final  report  was 
delivered in June 201712). 

  30 November – 1 December 2017, Tallinn: dedicated meeting of the EJN addressing 

practical problems and possible improvements of the Regulation. 

2018: 

  Broad scale on-line public consultation conducted by the Commission which received 

131 replies.    

This list of evaluative activities was complemented by research and work carried out by the 
other  institutions  of  the EU,  as  well  as  by  external  actors.  In  this  respect,  an  own-initiative 
report  was  adopted  by  the  European  Parliament  on  4  July  2017  on  common  minimum 
standards of civil procedure in the EU which contains provisions related to the acceptance of 
modern communication technology both for service of documents and for taking of evidence 
Overall,  Parliament  stressed  the  need  for  legislation  to  provide  for  a  set  of  procedural 
standards applicable to civil proceedings which would serve as a first step for convergence of 
national regulations concerning civil procedure in general and called on the Commission to 
proceed  with  the  delivery  of  its  action  plan  for  the  implementation  of  the  Stockholm 

10 Available at http://ec.europa.eu/justice/civil/files/final_report_1206_en.pdf.  

11 See project website: http://www.acj.si/en/presentation-evidence.     

12  Available  at  https://publications.europa.eu/en/publication-detail/-/publication/531ef49a-9768-11e7-b92d-
01aa75ed71a1/language-en.  

6 

 
 
 
 
                                                            
 
 
 
programme adopted by the European Council in the area of freedom, security and justice.The 
European  Parliament’s  report  contains  provisions  related  to  the  acceptance  of  modern 
communication  technology  both  for  service  of  documents  and  for  taking  of  evidence; 
furthermore  it  proposes  common  minimum  rules  e.g.  on  the  eligible  means  of  substituted 
service of documents or on evidence taking through videoconferencing, or by court appointed 
experts.  

Demand for improvements, in particular in relation to digitalisation, has also been formulated 
by  Member  States  in  the  evaluation  of  the  Directive,  amongst  others  in  discussions  in  the 
European  Judicial  Network  for  civil  and  commercial  matters  but  also  in  other  for  a.  In 
particular, the Council Working Party on E-Law set up an expert  group assessing issues  of 
electronic  service  under  the existing  legal  framework.  The Working  Party  on e-Law  led  by 
FR has just finished its work and presented a draft report to the CWP. This document (WK 
4519 2018 REV 1 of 24 April 2018) confirms in several points the existing obstacles to cross-
border electronic service of documents under the current Regulation. 

It  is  also  worth  mentioning  the  ongoing  ELI  (European  Law  Institute)  and  Unidroit 
(International  Institute  for  the  Unification  of  Private  Law)  project  "From  Transnational 
Principles to European Rules of Civil Procedure" which involves specific work on service of 
documents and taking of evidence. 13 

2.  PROBLEM DEFINITION 

2.1. 

Problem tree 

The  problems,  their  causes  and  effects  are  presented  below  by  means  of  a  problem  tree, 
which  serves  to  illustrate  the  problems  faced  by  EU  citizens  and  businesses  due  to  current 
limitations or shortcomings in the Regulation, the causes of these problems and their effects.  

The  issues  identified  at  the  bottom  of  the  so-called  ‘problem  tree’  are  considered  to  be  the 
root  causes/drivers  of  the  problems  that  ensue  for  citizens.  Ultimately,  the  problems  have 
effects  at  the  level  of  overarching  EU  objectives.  The  figure  should  thus  be  read  from  the 
bottom to the top. 

In the following sub-sections, each element of the problem tree is examined in further detail, 
starting  with  the  causes/drivers  of  the  problem  and  the  resulting  problems  for  citizens.  It 
should be noted that the problems identified in this section are those which were evidenced in 
the  parallel  evaluation  report  on  this  Regulation.  Both  the  evaluation  and  the  impact 
assessment reports are based on data collected for both reports. 

13 Related documents are available here: http://www.unidroit.org/work-in-progress-eli-unidroit-european-rules  

7 

 
 
                                                            
 
Figure 1: Problem Tree 

Source: Deloitte 

8 

 
 
 
 
2.2.  What are the problems? 

The  main  problems  identified  are  shortcomings  in  the  protection  of  rights  of  defence,  legal 
uncertainty, and delays and undue costs for citizens and business. The identified shortcomings 
also lead to delays and undue costs for public administrations. 

2.2.1.  Shortcomings  in  the  protection  of  rights  of  defence  and  legal 

uncertainty 

Legal  uncertainty  can  be  caused  by  diverging  interpretations  if  and  when  the  Regulation  or 
other  means  in  national  law  may  be  used  in  the  current  situation  where  the  Regulation  and 
national law sit alongside one another and courts can choose between them when they have to 
take  evidence  abroad14.  Legal  certainty  can  also  derive  from  diverging  interpretations  by 
national  authorities  of  the  terms  "courts"  under  the  Regulation  and  of  what  kind  of  judicial 
actions  constitute  "taking  of  evidence"  under  the  Regulation.  Currently,  there  is  no 
streamlined  interpretation  of  this  concept  among  the  Member  States:  some  of  them  only 
consider  traditional  tribunals  as  covered,  whereas  others  accept  a  more  open  approach  and 
accept and execute requests coming from judicial authorities other than courts (notary publics, 
social  welfare  or  guardianship  authorities,  enforcement  authorities),  if  these  are  empowered 
by law to proceed in civil or judicial matters 

In practice, these aspects may also cause stress, costs and delays for citizens, businesses, and 
public administrations. It is expected that this burden will increase in line with the expected 
increase of courts’ case load under Regulation (EC) 1206/2001 until 2030.15 

2.2.2.  Delays  and  undue  costs  for  citizens,  businesses  and  public 

administrations 

All types of legal proceedings – in one form or another – put a burden on the parties involved, 
such as: 

  Time taken to conclude the case;  
  Court fees; 
  Costs for legal advice; 
  Travel costs and time taken to travel (e.g. to travel to a hearing); 
  Fees for expert judgment;  
  Costs  for  the  translation  of  requests  and/or  evidence  (e.g.  testimonies)  as  well  as 

interpretation;  

  Stress related to the taking of evidence (including e.g. based on delays).  

Since all types of legal proceedings put a burden on the involved parties and stakeholders, it is 
important  to  avoid  undue  costs  and  delays.  Hence,  citizens  and  businesses  do  not  suffer 
particularly from the problem of high costs and long delays per se – but from costs and delays 
that could have been avoided (and thus can actively be reduced). 

14 The evaluation provides detailed information on the relationship between the Regulation and national law and 

the resulting significant but limited uptake of the Regulation. 

15 See for more detail point 3. of the evaluation report. 

9 

 
 
 
                                                            
The evaluation has shown that there is room for improvement regarding the efficiency of the 
processes provided for under the Regulation (i.e. the relationship between its benefits and the 
burden  it  puts  on  stakeholders)  to  remove  undue  costs  and  delays  within  different  types  of 
legal proceedings. According to the most of the stakeholders consulted, most national courts 
in cross-border cases still avoid resorting to the Regulation and summon the witness or other 
person to be heard directly to the court. This predilection is caused not only by the sometimes 
difficult  practical  coordination  between  the  courts  involved,  but  also  by  concerns  about  the 
preservation  of  the  principle  of  immediacy  in  the  assessment  of  the  evidence.  Furthermore, 
the language issue appears recurrently: The need to translate the form (and the questions) into 
a language accepted by the requested Member States raises problems with the accuracy of the 
translation  itself  and  with  the  costs.  It  has  also  demonstrated  that  the  absence  of  the  use  of 
modern  technology  in  the  communication  between  entities  is  a  key  component  of  the 
problems in this area and stronger use holds significant potential for improvements.  

The  length  of  the  procedure  is  perceived  to  be  a  problem  for  citizens,  businesses,  and  the 
public administration. More specifically, there is room for improvement with regard to delays 
and costs in relation to: 

  Respecting the time limits of the Regulation; 
  Using  the  means  to  conduct  a  hearing  that  are most  suitable  for  each  hearing  under  EU 

and domestic procedural law; and 

  Use of paper-based communication outside of hearings. 

The extent to which these aspects are actual problems depends, however, on the specific legal 
proceedings at hand and can hardly be assessed across the board. The reason for this is that 
each  legal  proceeding  is  different  and  factors  that  may  cause  detriment  in  one  legal 
proceeding  may  be  perceived  as  irrelevant  in  another  or  even  as  positive  at  best  (e.g. 
depending on the point of view of the involved parties). 

The time limits provided for under the Regulation are often not respected. This is something 
the European Commission already identified as an issue it its 2007 report on the application 
of the Regulation. Stakeholders, the online survey and (to some extent) also the open public 
consultation have reaffirmed that there is still room for improvement with regard to respecting 
the  time  limits  today.  6  out  of  7  stakeholders  indicated  in  the  online  survey  that  civil  or 
commercial  cases  involving  the  taking  of  evidence  in  other  EU  Member  States  take  longer 
than  six  months  (4  respondents  indicated  that  the  average  length  exceeds  12  months).  This 
can be compared to the 90 days limit set by the Regulation. 

The current differences regarding delays of and costs for legal proceedings between Member 
States are due to the different domestic procedural law and administrative capacity. 

Whereas in some  Member States witnesses can be questioned (with  prior  consent) via tools 
such as Skype or even email, other Member States require that persons are physically present 
in the court. There are advantages and disadvantages to both approaches and neither one can 
be regarded as better than the other: 

10 

 
 
The  physical  hearings  can  often  be  challenging  to  organise,  as  schedules  of  different 
stakeholders need to be aligned, court rooms need to be available, and the witness (or his / her 
representatives) need to show up in court. This may be a source of delays and costs within the 
process itself. 

However, physical hearings – compared to e.g. Skype hearings or even videoconferencing – 
can  guarantee  that  the  witness  is  (at  least  physically)  free  to  give  the  testimony  while  the 
judge or judicial officers can connect to the person emotionally, better observe gestures and 
other non-verbal communication in order to steer the hearing within an appropriate direction. 

In  that  sense,  it  is  important  that  judges  and  judicial  officers  need  to  use  the  means 
appropriate for a specific legal proceeding and find the appropriate balance between the two 
alternatives – especially since evidence may be harder to obtain in some cases than in others 
(e.g. in cases involving children or high profile commercial cases). 

Overall, the problems that the time limits of the Regulation are not respected, and that there 
are  means  to  conduct  a  hearing  that  are  more  suitable  for  particular  hearings  than  those 
covered by the Regulation are expected to  remain relevant in  the future. In  addition, paper-
based  communication  outside  of  hearings  is  also  expected  to  remain  of  relevance.  These 
problems are expected to cause citizens and businesses stress, delays, and costs in the future. 

Furthermore, there are differences between Member States with regard to the availability, and 
the potential and actual use of videoconferencing in courts. The use of videoconferencing has 
increased  over  the  last  years  across  Member  States,  in  particular  in  Member  States  such  as 
Portugal  or  Sweden.  It  has  been  estimated  that  between  2001  and  2017,  on  average,  up  to 
3,600  hearings  were  held  per  annum  via  videoconference  with  videoconferencing  being  far 
less  frequent  in  the  early  2000s  than  today.  The  number  of  videoconferences  is  expected  to 
increase until 2030 to up to 4,600 hearings per year on average (again, videoconferencing is 
expected to be more frequent in 2030 than today).16 

It  is  also  perceived  as  a  problem  that  Member  States  are  using  different  types  of 
videoconferencing  systems  that  are  not  necessarily  interoperable  from  a  technical  and  legal 
perspective  today.  These  differences  are  expected  to  scale  up  until  2030.  The  costs  for 
videoconferencing  are  expected  to  decrease  incrementally  over  the  next  years  –  both  in 
relation  to  one-off  costs  to  procure  the  facilities,  as  well  as  in  relation  to  recurrent  costs  to 
operate them (e.g. based on the costs incurred for sufficiently fast internet connections). It is, 
however, not clear how they will develop realistically. However, costs related to interpreting 
videoconferences,  transcribing  them,  and  translating  the  transcripts  are  not  necessarily 
expected to decrease in the future compared to today. This will largely depend on the take-up 
and use by courts of Artificial Intelligence that can simultaneously translate and record oral 
speech. 

The increased take-up of videoconferencing is expected to increase challenges and practical 
that 
problems 

to  organisation  and  scheduling  as 

today  a  problem 

is  already 

it 

16 Source: Deloitte study. 

11 

 
 
                                                            
videoconferencing facilities are largely pre-booked in advance and there is no capacity to take 
evidence on comparatively short notice.  

Thus,  without  the  use  of  a  smart  booking  system  (at  the  national)  level,  challenges  for  the 
organisation of videoconferences will remain. 

The  public  consultation  conducted  by  the  Commission  shows  significant  support  for  an 
increased use of video-conferencing: 

Figure 1: 

As a rule, a person with residence in another Member State should be 
heard through videoconferencing instead of being summoned in 
person to a foreign court. 

44 

39 

17 

17 

9 

Strongly
agree

Tend to
agree

Tend to
disagree

Strongly
disagree

Do not
know/ No
opinion

Source: Public consultation conducted by the Commission.  

2 

No answer

2.3.  What are the problem drivers? 

2.3.1.  Preparation of the request and taking of evidence and transmission 

of the request 

The public consultation conducted by the Commission has shown that the Regulation which is 
used in a lot of cases with a substantial growth rate is considered a success by stakeholders 
and has  provided EU added  value. Only a minority  of stakeholders considered the channels 
for taking evidence under the Regulation too cumbersome. A large majority of stakeholders 
stated  that  it  does  not  pose  any  difficulty  to  decide  when  they  apply  the  Regulation,  as  the 
figure below shows.17 

17 Most answers to the public consultation cam from courts, national representative organisations or 

representations of legal professions and national public authorities. 

12 

 
 
 
 
 
                                                            
Figure 2 

It does not pose any difficulty to decide when I have to apply the 
methods foreseen in the Regulation on taking of evidence in another 
Member State. 

36 

24 

21 

29 

15 

2 

Strongly
agree

Tend to
agree

Tend to
disagree

Strongly
disagree

No answer

Do not
know/ No
opinion

Source: Public consultation conducted by the Commission 

There is, however, room for improvement with regard to several aspects: 

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

The  public  consultation  of  the  Commission  confirmed  these  findings,  and  the  need  for 
improvement: 

13 

 
 
 
 
 
 
Figure 3 

 It was not possible to transmit electronically a request for service or a 
document to be served to the designated agency of another Member 
State 

74 

17 

13 

7 

4 

12 

Strongly
agree

Tend to agree

Tend to
disagree

Strongly
disagree

Do not know/
No opinion

No Answer

Figure 4 

The use of electronic means should become the default standard in 
communication between the authorities/agencies involved in cross-
border judicial cooperation in civil matters. 

61 

39 

12 

12 

1 

Strongly
agree

Tend to
agree

Tend to
disagree

Strongly
disagree

Do not
know/ No
opinion

3 

No answer

14 

 
 
 
 
 
 
 
 
 
Figure 5 

As a basis, and whenever it is feasible, the evidence obtained should 
be exchanged through electronic channels in course of cross-border 
judicial assistance. 

48 

45 

15 

15 

1 

Strongly
agree

Tend to
agree

Tend to
disagree

Strongly
disagree

Do not
know/ No
opinion

Source: Public consultation conducted by the Commission 

4 

No answer

Some  experienced  uncertainty  whether  the  Regulation  or  other  means  in  national  law 
may be used. For instance, interviewees stated that its content and scope or the relationship to 
other  instruments  is  not  always  clear,  which  contributes  to  legal  uncertainty  or  delays.  For 
example,  the  question  has  been  raised  by  courts  in  Estonia  when  national  methods  for  the 
takings of evidence may be used instead of those prescribed in the Regulation. A study carried 
out  by  the  Max-Planck  Institute  Luxembourg  in  2017  found  that  differences  in  national 
procedural  rules  on  the  taking  of  evidence  may  have  led  to  refusals  of  requests  to  take 
evidence  under  the  Regulation.18  Furthermore,  such  differences  may  have  led  to  the  non-
recognition of judgments in the past, as courts used the possibility to object judgments based 
on public policy, if the standards of taking evidence were not in line with requirements under 
national  law.19  This  would  be  in  conflict  with  the  aim  of  facilitating  smooth  cross-border 
proceedings and a smooth recognition of judgments.  

Several judges stated that their motivation to remain aware about the Regulation is low, given 
their high workload in domestic cases and the irregular occurrence of cross-border cases. This 
leads  to  a  preference  to  apply  other,  more  familiar  instruments  available  under  national 
procedural law also in cross-border cases.  

18 European Commission (2017), An evaluation study of national procedural laws and practices in terms of their 
impact  on  the  free  circulation  of  judgments  and  on  the  equivalence  and  effectiveness  of  the  procedural 
protection  of  consumers  under  EU  consumer  law  (JUST/2014/RCON/PR/CIVI/0082),  Strand  1:  Mutual 
Trust and Free Circulation of Judgments, mn. 244-245, https://publications.europa.eu/en/publication-detail/-
/publication/531ef49a-9768-11e7-b92d-01aa75ed71a1/language-en  

19 Ibid., mn. 256.  

15 

 
 
 
 
                                                            
 
 
At the same time, a number of frequently used channels, such as taking of evidence through 
consular  agents,  or  diplomatic  officers  are  not  explicitly  acknowledged  by  the  Regulation 
itself.  However,  methods  under  national  procedural  law  were  considered  by  some 
stakeholders to be “just as effective” in most cases. In addition, interviewees considered them 
at times more efficient to obtain the desired results.  

These findings tend to confirm that although the non-mandatory nature of the Regulation and 
the availability of national law as an alternative avenue for taking evidence abroad is not per 
se an obstacle to the efficiency of the overall system of cross-border taking of evidence in the 
EU  and  may  even  contribute  to  better  performance  by  making  available  more  efficient 
methods  not  included  in  the  Regulation,  this  parallel  structure  also  creates  a  number  of 
problems.  

Another  cause  for  legal  uncertainty  concerns  the  diverging  interpretation  of  "courts" 
under the Regulation by the national authorities. The definition of requesting courts was 
reported  to  be  interpreted  very  narrowly  in  some  Member  States.  One  stakeholder  from 
Hungary  explained  that  requests  by  notaries  acting  in  a  “court-like  capacity”  were  not 
recognised in another Member State.20 A related cause of legal uncertainty and delays is the 
possibly  diverging  understanding  of  what  kind  of  judicial  actions  constitute  "taking  of 
evidence" under the Regulation. For instance, the definition of the term “evidence” was raised 
as one of the main issues in the Commission’s report on the application of the Regulation.21  

2.3.2.  Decision about the validity of a request 

One cause for delays (and ensuing costs for parties involved in proceedings) may be  that no 
acknowledgement of receipt of a request from the requested court is received (or only with a 
delay).  This  concerns  cases  in  which  the  taking  of  evidence  through  a  competent  court  is 
requested  and  an  acknowledgement  of  the  receipt  (using  Form  B)  needs  to  be  provided. 
According  to  interviewees,  it  is  rarely  returned  within  seven  days,  as  stipulated  by  the 
Regulation. On the one hand, interviewees explained that this, for instance, is due to the time 
required  for  postal  delivery  –  here  again  the  lack  of  electronic  communication  has  adverse 
impacts. On the other hand, interviewees mentioned instances where the internal processing 
of  requests  was  not  possible  within  the  given  time-frame.  In  cases,  where  direct  taking  of 
evidence  is  requested,  no  such  confirmation  of  receipt  is  required.  Instead,  the  central 
authority has to communicate within 30 days whether the request is accepted or refused. The 
obligation to obtain a prior authorisation of direct taking of evidence by the central authority 
was considered a potential cause of delays by some interviewees.22 Regardless of the channel 

20  As  a  result,  a  standard  letter  explaining  the  status  of  notaries  in  the  Hungarian  legal  system  is  attached  to 

requests to take evidence, which has helped to facilitate the process. 

21 Report from the Commission 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, 5.12.2007, COM(2007) 769 final, p. 2.  

22  In  any  case,  the  coordination  of  hearings  and  other  forms  of  direct  taking  of  evidence  abroad  was  already 

considered to be potentially more demanding and time consuming for a requesting court.  

16 

 
 
 
                                                            
 
 
 
for  which  the  request  was  specified,  the  requesting  courts  can  do  nothing  to  ensure  an 
effective and expedite processing (and execution) of requests, according to the interviewees. 
The Regulation specifies no consequences or further means to address this type of situations. 

2.3.3.  Taking of evidence 

Concerning the procedures, stakeholders often cited the example of direct taking of evidence 
via telephone or videoconferencing. In some Member States, these procedures are either not 
permitted  or  significant  administrative  or  technical  obstacles  may  cause  delays.23  For 
instance,  the  availability  of  videoconferencing  facilities  or  technical  staff  may  be  the 
bottleneck preventing a swift hearing.  

Delays or additional costs after a request were also caused if the requested method of taking 
evidence is not available in the requested Member State. This concerns contents and formats 
as  well  as  the  procedures  to  obtain  evidence.  For  instance,  several  courts  cited  examples  in 
which evidence in the form of social welfare reports could not be obtained in custody cases. 
Here, the need to find and prepare an adequate substitute (e.g. reformulate information needs 
into questions for a physical hearing) was mentioned as a cause of delays and additional costs.  

2.3.4.  Confirmation 

The use of modern technologies to communicate or exchange evidence electronically is still 
only  permitted  in  few  Member  States.  Likewise,  interviewees  reported  legal  barriers  to  the 
acceptance of electronic (digital) evidence produced  or  stored in  another Member  State. On 
the one hand, the concept of “electronic evidence” is not defined at all or defined in different 
ways  in  different  Member  States.  On  the  other  hand,  the  transmission  of  evidence  in 
electronic forms is not always permitted, i.a. because methods to verify digital signatures are 
not  yet  known  or  used  by  most  requesting  or  requested  courts.  In  addition,  some  Member 
States  may  not  accept  electronic  evidence  based  on  security  concerns,  as  data  storage 
mediums from external sources could contain viruses or other harmful software.  

3.  WHY SHOULD THE EU ACT? 

3.1.  Legal basis 

The legal basis is Article 81 TFEU (judicial cooperation in civil matters having cross-border 
implications).Subparagraphs  (b)  and  (d)  of  paragraph  (2)  of  this  Article  grants  the  EU  the 
power  to  adopt  measures,  particularly  when  necessary  for  the  proper  functioning  of  the 
internal  market,  aimed  at  ensuring  the  cross-border  service  of  judicial  and  extrajudicial 
documents and the cooperation in taking of evidence.  

23 For instance, Swedish courts frequently use telephone conferences to hear witnesses or parties involved. This 

is rarely permitted in cross-border contexts. 

17 

 
 
 
 
 
                                                            
 
3.2. 

Subsidiarity 

The aim of the policy area concerning judicial cooperation in civil matters has been always be 
to  establish  a  genuine  area  of  justice,  where  judicial  decisions  circulate  and  legal  situations 
acquired  under  one  legal  system  are  acknowledged  within  the  EU  across  borders  without 
unnecessary  obstacles.  This  approach  is  based  on  the  conviction  that  without  a  genuine 
judicial area the underlying freedoms of the single market cannot be fully exploited. 

The problems to be tackled by the initiative arise in cross-border judicial proceedings which 
by  definition  transcend  the  reach  of  national  legal  systems  and  stem  either  from  the 
insufficient level of cooperation between the authorities and officers of the Member States, or 
from  the  lack  of  interoperability  and  coherence  of  the  existing  domestic  systems  and  legal 
environment.  Rules  in  the  area  of  private  international  law  are  laid  down  in  Regulations 
because that is the only way to ensure the desired uniformity of rules. While nothing prevents 
Member States in principle from digitalising the way they communicate, past experience and 
the projection of what will happen without EU action shows that progress be very slow and 
that  even  where  Member  States  take  action,  inter-operability  cannot  be  ensured  without  a 
framework under EU law. The objective of the proposal cannot be sufficiently accomplished 
by the Member States themselves and can therefore be only achieved at Union level. The EU 
added  value  lies  in  further  improving  the  efficiency  and  speed  of  judicial  procedures,  by 
simplifying  and  accelerating  the  cooperation  mechanisms  with  regard  to  the  taking  of 
evidence  and  thus  improving  the  administration  of  justice  in  cases  with  cross-border 
implications. Comparing with the Hague system, that provides for the taking of evidence by 
means  of:  letters  of  request  and  diplomatic  or  consular  agents  and  commissioners,  the 
Regulation  put  in  place  a  modern  and  efficient  system  of  direct  dealings  between  courts 
(transmission of requests and of re-transmission of the evidence taken).  

4.  OBJECTIVES: WHAT IS TO BE ACHIEVED? 

The policy objectives set out the political priorities and aims for action in the relevant field. 
They  are  an  essential  step  of  every  impact  assessment,  including  because  they  support  the 
creation of a logical link between the identified problems and the solutions considered.  

Policy objectives are normally identified at the following levels: 
  Operational objectives concern deliverables or objectives of actions; 
  Specific objectives relate to the specific domain and set out what the Commission wants 

to achieve with the intervention in detail; and 

  General  objectives  refer  to  Treaty-based  goals  and  constitute  a  link  with  the  existing 

policy setting. 

The following figure presents the policy objectives:

18 

 
 
 
Figure 6: Objectives Tree 

Source: Deloitte

19 

 
 
 
 
• 
The general objectives are to ensure the smooth functioning of the area of freedom, 
security  and  justice  by  strengthening  the  trust  in  the  judicial  systems  of  the  Member  States 
and the EU and safeguarding the fundamental rights in the EU, and. • 

The  specific  objectives  are  to  further  improve  the  efficiency  and  speed  of  judicial 
proceedings.  The  intervention  should  also  reduce  the  burden  for  citizens  and  businesses 
involved in cross-border proceedings resulting  from undue  costs and  delays, and reduce the 
level of legal uncertainty identified in course of evaluation of the Regulation. 

• 

The operational objectives are  

o 

o 
o 

to  ensure  that  the  most  rapid  means  are  used  for  the  transmission  and  execution  of 
requests for the taking of evidence, including modern technologies; 
to ensure that requests for the taking of evidence are executed expeditiously; 
to facilitate the direct taking of evidence.  

5.  WHAT ARE THE AVAILABLE POLICY OPTIONS? 

For  each  problem  driver,  a  range  of  options  from  non-legislative  to  different  levels  of 
ambition of legislation has been identified. Because of the multiplicity of issues and options 
this  assessment  is  based  on  a  distinction  between  the  core  options  as  the  most  important 
building blocks of an initiative and other less central options. To focus this document on the 
most  essential  elements  the  core  options,  the  use  of  the  e-codex  and  the  use  of 
videoconferencing  are  shown  in  the  table  and  fully  assessed  below.  The  other  options  are 
entirely dealt with in AnnexV. 

20 

 
 
 
 
 
Overview of the core options and options for each sub-problem identified 

Baseline 
Option 0 

Non-Legislative 
Option 1 
Options 

Legislative 
Option 2 
Options 

1. Method of taking evidence requested not available in the requested Member State, e.g. video-conferencing 
No policy change 
apart from what is 
already underway 
or currently 
planned 

1.2 (a) Using VC, telephone-conferencing or other means of distant communication, as a 
rule, if a person needs to be heard from another MS (subject to availability of equipment at 
the court), unless the use of such technology, on account of the particular circumstances of 
the case, is not appropriate for the fair conduct of the proceedings. National law on the 
taking of evidence through VC in purely internal situations remains untouched. 

Mixed legislative and non-legislative option24 

1.1. Awareness raising of 
courts on existing ways 
and procedures and 
examples of the benefits of 
using and accepting digital 
methods, as well as the 
adoption of electronic 
systems in courts 

1.2 (b) Incentivise Member States to equip courts with VC facilities by co-financing some 
national projects for furnishing courts with equipment from EU programmes.25 

+ 

2. Paper-based communication between courts is time-consuming and costly, and  
3. Legal barriers to the acceptance of electronic (digital) evidence produced or stored in another Member State 
No policy change 
apart from what is 
already underway 
or currently 
planned 

2.2 (a) CEF eDelivery (eCodex) should be the 
default channel for electronic communication 
and document exchanges between the 
agencies/courts designated under Regulation 
(EC) 1206/2001 (as well as the Service 
Regulation). E-communication should replace, 
as a general rule, paper workflows. 

2.1. Sharing of best 
practices between MS 
(designated authorities) on 
e-communication and 
electronic exchange of 
documents under the 
Regulation  

6.3 Obliging designated authorities/courts 
under the Regulation to use certified e-
mails (furnished with qualified e-
signatures) for their communications and 
exchange of the documents. 

24 Sub-option 4.2. is assessed as a hybrid option, as financing national projects requires legislation to design and execute a financial programme. Thus, it combines elements of 

a non-legislative and legislative option. 

25 Possibly, this sub-option might be complemented with the following point, which would then also need to be assessed: 4.2 (c). Detailed provisions on the procedure for 

arranging a cross-border VC, in line with the criminal EIO Regulation. 

21 

 
 
 
                                                            
Baseline 
Option 0 

Non-Legislative 
Option 1 
Options 

Legislative 
Option 2 
Options 

2.2 (c) Specify in the Regulation that: 
(i) an evidence (e.g. declaration, testimony, 
authentic instrument) which is transmitted in 
form of electronic document through the 
appropriate communication system (see point 6)) 
should be considered as if it was transmitted in 
original (paper) version 
(ii) the quality of evidence may not be denied in 
a civil proceedings from a digital evidence which 
is produced and preserved (stored) in another 
MS in accordance with the laws of that MS   

2.3. Obliging designated 
authorities/courts under 
the Regulation to use 
certified e-mails (furnished 
with qualified e-
signatures) for their 
communications and 
exchange of the 
documents. 

Source: Deloitte 

22 

 
 
 
 
 
 
 
6.  WHAT ARE THE IMPACTS OF THE POLICY OPTIONS? 

This  chapter  presents  the  assessment  of  impacts  of  the  individual  options.  It  starts  with  an 
assessment of the options proposed for all high-priority issues. The preferred options are then 
combined  into  a  “Preferred  Policy  Option”,  which  is  assessed  against  the  baseline  scenario 
(Option 1). 

This section includes the assessment of the options proposed for all problems identified in the 
problem  assessment.  The  different  options  are  assessed  using  the  following  common 
assessment criteria: 

Assessment Criteria for assessment of the options 

Criterion 

Examples of elements to consider 

Effectiveness:  (i.e. extent 
to which the options 
address the policy 
objectives) 

  Potential  of  the  options  to  achieve  the  key  policy 

objectives, in particular:  
o To reduce legal uncertainty 
o To  further  improve  the  efficiency  and  speed  of  judicial 

proceedings 

o To  improve  access  to  justice  and  the  protection  of  the 

procedural rights of parties to the proceedings 

o To  reduce  the  burden  from  undue  costs  and  delays  for 
in  cross-border 

involved 

citizens  and  businesses 
proceedings. 

Efficiency (i.e. cost-
benefit balance) 

Proportionality (i.e. 
extent to which the options 
are in line with what is 
needed to achieve the 
policy objectives) 

  Main  cost  factors  for  various  (public  and  private) 

stakeholders 

  Main benefits for various stakeholders  

  Assessment of whether the option goes further than what is 

needed, based on:  
o Scope of the option 
o Type  of  instrument  proposed  (e.g.  hard  law  vs.  soft 

measures) 

The assessment tables, organised per problem to be addressed, are presented in Annex A.  

As  a  consequence  of  this  "high-level"  assessment,  for  all  specific  problems  we  retain  one 
option which received the highest  ranking among the options addressing the same  problem. 
The combination of these retained options will compose the preferred "Policy Package", for 
which a detailed assessment (including a cost-benefit analysis, and analysis of various other 
impacts) will be carried out, in line with the Better Regulation Guidelines of the Commission. 

The results of the assessment for the Preferred Policy Package  can be summarised as follows: 

Problems 

Option 

1. Uncertainty 
when the 

1.3 (a)Defining other means of cross-border taking of evidence in the 
Regulation  in  addition  to  the  existing  two  ways:  acknowledging  the 

23 

 
 
 
Problems 
Regulation shall 
be used or other 
means in 
national or 
European law 
may be used 
(non-mandatory 
application of 
the Evidence 
Regulation) and  

5. The ways of 
cross-border 
taking of 
evidence in the 
Regulation are 
often more 
cumbersome and 
slower than the 
means available 
in national law 
or other EU 
instruments 

2. Diverging 
interpretation of 
“courts” under 
the Regulation 
by the national 
authorities 

3. Diverging 
understanding 
what kind of 
judicial actions 
constitute a 
“taking of 
evidence” under 
the Regulation 

4. Method of 
taking evidence 
requested not 
available in the 
requested 
Member State, 
e.g. video-
conferencing 

Option 
ways supported by the CJEU as legitimate means under the Reg.: 

(i) direct examination of facts in MS B by experts appointed by courts 
in MS A in accordance with the procedural rules of MS A, insofar this 
activity does not affect the sovereign powers of MS B > see C-332/11 
ProRail 

(ii) summoning foreign persons directly to the trial court (but whenever 
possible, VC should have priority) > see C-170/11 Lippens and others 

+ 

1.3  (b)  Regulate  the  taking  of  evidence  through  diplomatic  officer  or 
consular agent as a specific way of taking of evidence under the Reg., 
in line with relevant provision of the 1970 Hague Convention  

2.4. (a) Replacing 'courts' in Art 1 with 'judicial authorities' 

+ 

2.4. (b) Providing a general definition of 'judicial authorities' (similarly 
to the Succession Regulation or the Maintenance Regulation) 

3.2  (a)  Completing  Art  1  'taking  of  evidence'  with  'and  other  judicial 
acts'  

4.2  (a)  Using  VC,  telephone-conferencing  or  other  means  of  distant 
communication,  as  a rule, if a  person needs to  be heard from another 
MS (exceptions possible, including subject to availability of equipment 
at  the  court),  unless  the  use  of  such  technology,  on  account  of  the 
particular  circumstances  of  the  case,  is  not  appropriate  for  the  fair 
conduct  of  the  proceedings.  National  law  on  the  taking  of  evidence 
through VC in purely internal situations remains untouched. 

+ 

4.2  (b)  Incentivise  Member  States  to  equip  courts  with  VC  facilities 
through  financing  national  projects  for  furnishing  courts  with 

24 

 
 
 
Problems 

Option 
equipment from EU programmes. 

5. The ways of 
cross-border 
taking of 
evidence in the 
Regulation are 
often more 
cumbersome and 
slower than the 
means available 
in national law 
or other EU 
instruments 

5.1  (a)  Communicating  the  importance  of  the  uniform  standards 
provided by the Regulation (streamlined procedures, equal standard of 
protection of the right of the parties involved). 

5.1  (b)  Best  practices  for  competent  courts  to  help  them  to  apply  the 
procedures properly and without delay. 

+ 

5.1 (c) Awareness raising to courts and other legal professionals of the 
availability of the direct channel of taking evidence under Art. 17. 

+ 

6. Paper-based 
communication 
between courts is 
time-consuming 
and costly, and  

6.2  (a)  CEF  eDelivery  (eCodex)  should  be  the  default  channel  for 
electronic  communication  and  document  exchanges  between  the 
agencies/courts  designated  under  the  Evidence  Regulation  (as  well  as 
the Service Regulation). E-communication should replace, as a general 
rule, paper workflows. 

7. Legal barriers 
to the acceptance 
of electronic 
(digital) evidence 
produced or 
stored in another 
Member State 

8. Delays in the 
execution of a 
request by the 
requested court 

Horizontal 

6.2 (c) Specify in the Regulation that: 

+ 

(i)  an  evidence  (e.g.  declaration,  testimony,  authentic  instrument) 
which  is  transmitted  in  form  of  electronic  document  through  the 
appropriate communication system (see point 6)) should be considered 
as it was transmitted in original (paper) version 

(ii)  the  quality  of  evidence  may  not  be  denied  in  a  civil  proceedings 
from  a  digital  evidence  which  is  produced  and  preserved  (stored)  in 
another MS in accordance with the laws of that MSs  

8.2  (b)  Implementing  technical  measures  ensuring  automatic  and/or 
manual logging of the steps of the workflow. 

Updating  of  existing  guidance  material  and  awareness  raising  of  the 
changes. 

25 

 
 
6.1.  Assessment of the core options 

In order to focus this document on the most essential elements, respectively the use of the e-
codex and the use of videoconferencing, they will be assessed below. 

6.1.1.  Assessment  of  the  options  for  the  problem  ‘method  of  taking 
evidence  requested  not  available  in  the  requested  Member  State’, 
e.g. video-conferencing’  

As  it  was  stressed  by  the  evaluation  report,  the  use  of  videoconferencing  can  simplify  the 
interactions  in  cross-border  judicial  cooperation.  Videoconferencing  facilities  can,  for 
instance,  be  used  to  find  the  right  balance  between  the  challenges  to  organise  a  physical 
hearing and being able to safeguard the freedom of the witness’s testimony (e.g. if an official 
in-court  videoconferencing  system  is  used).  However,  the  evaluation  report  concluded  that 
there are differences between the Member States with regard to the availability, potential, and 
actual use of such systems in courts: 

6.1.1.1. 

 Option 1.1 

Option 1.1.  Awareness raising of courts on existing ways and procedures and examples of 
the benefits of using and accepting digital methods, as well as the adoption of electronic 
systems in courts 

Effectiveness 

Awareness raising of courts could include the development of printed material (i.e. flyers) and 
digital  content  (Word  and  Power  Point,  as  well  as  website  content)  that  could  be  published 
physically,  via  the  eJustice  portal,  or  e.g.  as  part  of  larger  communication  packages  to 
courts.Raising  the  awareness  of  courts  of  digital  tools  to  take  evidence  across  borders  is 
expected to contribute to the improvement of the efficiency and speed of judicial proceedings.  

Increased awareness could, for example, have a positive effect on the supply and demand of 
digital tools such as VC, which, in turn, is expected to lead to an increased take-up of such 
facilities in practice. Courts that are already in possession of VC facilities are expected to use 
them increasingly frequent and courts that do not yet possess VC facilities are expected to be 
more likely to invest in the necessary technical equipment. 

Hence, the extent of the benefits would be dependent on the take-up by courts, including the 
possibility for the courts to set aside a budget to acquire the relevant equipment. Depending 
on the number of courts that actually invest in VC facilities and its actual use in practice, this 
could result in reduced costs and delays for citizens and businesses.It should be kept in mind, 
however,  that  supply  and  demand  are  not  the  only  determinants  of  VC  use  in  legal 
proceedings. Although VC facilities may be available for use in a specific legal proceeding, it 
may  not  necessarily  be  the  most  fitting  solution  for  every  case  or  all  stakeholders  directly 
involved in the case to actually use it. 

Efficiency  

26 

 
 
 
Overall,  raising  courts’  awareness  is  considered  a  pragmatic  way  to  improve  the  take-up  of 
VC compared to the Baseline Scenario. There are, however, constraints of time, resource and 
reach. The costs for the awareness raising activities are dependent on the exact scope, means 
and target groups of the activities. It can be expected that the organisation of these activities 
would  be  procured  by  the  Commission.  Experience-based  estimates  show  that  the 
implementation of awareness raising activities targeting a comparatively limited audience can 
at least cost one million Euro if implemented in all 28 Member States (depending of course on 
the types of channels, frequency of communication, level of information etc.). 

Considering that there are approx. 82,000 professional judges in the EU , which could all be 
handling a cross-border case, costs could be up to around 2 million Euro, if each individual 
would  be  targeted  directly  .In  addition,  courts  are  expected  to  invest  in  VC  facilities  as  a 
result  to  the  awareness  raising  activities.  Interviewees  indicated  that  the  acquisition, 
implementation, and operation of professional, high-end VC equipment (e.g. similar to those 
used by the Commission in their larger conference rooms) could cost as much as 90,000 Euro 
–  depending  on  the  type  of  systems  and  its  functionalities  (e.g.  number  of  microphones, 
cameras, extent to which the system is smart and can track conversations by zooming in on 
attendees  that  currently  use  the  microphone).  This  estimate  seems  to  be  very  high.  Prices 
available online show that approx. 3,000 Euro per month could be a more realistic estimate. 
This  means  that  annual  costs  per  court  could  be  in  the  range  of  36,000  Euro.  According  to 
CEPEJ  2014,  there  are  6,000  courts  in  the  EU  of  which  a  limited  number  already  has  VC 
facilities. Thus, if all courts were to be equipped with one VC facility – which is still unlikely 
–  costs  could  be  as  high  as  216  million  Euro  across  all  Member  States,  i.e.  on  average  8 
million Euro per Member State. There could be similarly high costs for the replacement of the 
current system after a couple of years of maintenance.Thus, the extent to which this option is 
efficient overall (i.e. across all stakeholders, incl. public authorities) depends on the extent to 
which costs and delays that can be saved in legal proceedings exceed the overall costs of the 
implementation of awareness raising regarding digital tools. 

Moreover, it depends on the extent to which costs and delays can be saved in comparison to 
domestic means to take evidence across borders that often include costs to travel to the court 
in  another  Member  State.  Thus,  awareness  raising  is  not  necessarily  an  efficient  option  for 
public  authorities.  However,  it  is  expected  that  awareness  activities  raising  is  an  efficient 
option to reduce the costs and delays for citizens and businesses.  

Proportionality  

The option is overall proportionate. However, this option is not considered to go beyond what 
is needed to achieve the policy objectives. It is, however, not fully clear at this stage to what 
extent  the  Member  States  are  not  better  equipped  to  promote  the  use  of  VC  facilities 
compared to the Commission. They have a better understanding about their national systems, 
the  availability  of  VC  facilities,  as  well  as  their  practical  functioning  than  the  Commission. 
This  is  of particular importance for larger Member States such  as  Germany in  which VC is 
not  even  used  to  the full  extent  possible in  domestic procedures.  Therefore, it is  considered 
proportionate for the Commission to act in unison with the Member States. The option may 

27 

 
 
 
impose  a  relatively  small  budgetary  burden  on  the  Commission  for  (procuring)  the 
development and implementation of the awareness raising activities. Secondary costs, born by 
the Member States, however, could be significant. The take-up is, however, voluntary and the 
VC equipment acquired could also be used for domestic cases. To conclude, while the type of 
action does not go beyond what is necessary to address the problem. It would, however, not 
fully address the problem and the Member States could be better placed to lead the activities. 

Conclusion  

Awareness raising activities are expected to provide a limited improvement compared to the 
Baseline  Scenario.  Although  the  awareness  raising  activities  are  expected  to  contribute  to 
achieving  the  policy  objectives,  the  extent  to  which  the  benefits  exceed  the  costs  is 
ambiguous. Moreover, Member States may be better equipped than the Commission to 

6.1.1.2  Options 1.2 (a) and 1.2 (b)  

Options  1.2  (a)  and  1.2  (b)  :  Using  VC,  telephone-conferencing  or  other  means  of  distant 
communication, as a rule, if a person needs to be heard from another Member State (subject to 
availability of equipment at the court), unless the use of such technology, on account of the 
particular circumstances of the case, is not appropriate for the fair conduct of the proceedings. 
National  law  on  the  taking  of  evidence  through  VC  in  purely  internal  situations  remains 
untouched  +  1.2  (b)  Incentivise  Member  States  to  equip  courts  with  VC  facilities  by  co-
financing some national projects for furnishing courts with equipment from EU programmes 

Effectiveness  

The availability of technical infrastructure is the backbone of effectively using VC facilities 
across  borders.  This  could  lead  to  an  increased  take-up  of  direct  methods  to  take  evidence 
across borders under the Regulation. Moreover, incentivising Member States to equip courts, 
e.g.  through  funding  from  the  EU  budget  for  national  projects,  can  be  –  given  appropriate 
procedural  flexibility  –  an  effective  option  to  further  improve  the  efficiency  and  speed  of 
judicial proceedings, as well as to reduce the burden from undue costs and delays for citizens 
and businesses involved in cross-border proceedings. 

This is in particular valid as costs to equip courts with high-end VC facilities could be around 
8 million Euro on average per Member State (see option 4.1 under efficiency). 

At  this  stage,  it  is  not  clear  what  the  hearing  of  a  person  in  another  Member  State  through 
“VC,  telephone-conferencing  or  other  means  of  distant  communication  means  as  a  rule” 
entails  and  to  what  extent  this  is  flexible  (e.g.  to  adapt  it  to  the  circumstances  of  a  specific 
case). This would need to be specified further with the Commission, e.g. in relation to: 

  Definition of “other means distance communication means” apart from VC and telephone-

conferencing (e.g. email, Skype, WhatsApp, Facebook); 

  Definition of “as a rule” and the notable exceptions, which would need to allow courts to 
adapt the proceeding to the specifics of a case (e.g. lack of consent, cases in border regions, 
or hearing of small children) 

28 

 
 
 
  Administrative  processes  through  which  deviations  can  be  justified  and  the  associated 

burden for courts. 

Efficiency  

Incentives for Member States, e.g. through funding national projects from the EU budget, is a 
proven  and  efficient  means  to  accelerate  the  take-up  of  technical  solutions  in  the  Member 
States.For  instance,  eCODEX  was  funded  over  six  years  with  an  EU  budget  of  12  million 
Euro. An additional 12 million Euro was made available by the Member States.It is expected 
that  the  funding  for  VC  equipment  would  cost  considerably  less  than  the  funding  for 
eCODEX.The use of VC or other distance communication systems by default is considered to 
be  less  costly  per  case  than  e.g.  travelling  abroad.  While  cross-border  travel  can  be  around 
20%  more  expensive  than  domestic  travel  based  on  research,  the  absolute  amount  of  costs 
associated with operating VC facilities is expected to be marginal.  

There  can,  however,  considerable  one-off  costs  associated  with  VC  which,  in  turn,  could 
balance  the  efficiency  of  VC  compared  to  travel,  depending  of  course  on  the  specific 
circumstances of the legal proceedings. 

Moreover, the efficiency of this option depends on the extent to which the “rule” of VC and 
telephone-conferencing is flexible and can be adapted to the circumstances of each case (e.g. 
involving children), as well as the extent to which courts have a burden to justify the grounds 
based on which the deviate from the rule and e.g. still summon a person to court 

Proportionality  

Option 1.2 (b) is not considered to go beyond what is needed to achieve the policy objectives 
and  is  considered  to  be  proportionate.  Some  questions,  however,  need  to  be  clarified  with 
regard  to  option  1.2  (a).  More  specifically,  the  specific  grounds  based  on  which  a  justified 
deviation from the rule to use distant communication is possible would need to be clarified. It 
seems  at  this  stage  that  deviation  is  only  possible  in  case  appropriate  equipment  is  not 
available in court. 

In  this  regard,  legal  professionals  consulted  have  commented  that  VC  and  other  distance 
communication means are not necessarily most appropriate under the specific circumstances 
of  each  legal  proceeding  or,  for  instance  if  in  particular  VC  equipment  is  available  within 
reasonable time in order not to delay a proceeding. 

Both options create a financial and administrative cost for the national governments, as well 
as  regional  or  local  authorities.  It  is  not  fully  clear  that  these  costs  will  be  commensurated 
with the objectives to be achieved. 

Conclusion  

This  option  addresses  the  lack  of  VC  equipment  by  means  of  providing  for  funding  for 
Member  States.  This  is  a  crucial  prerequisite  to  improve  the  take-up  direct  methods  to  take 
evidence  across  borders,  e.g.  by  using  VC  in  legal  proceedings.There  are,  however,  costs 
local 
associated  with 

the  EU  as  well  national, 

regional,  and 

this  option 

for 

29 

 
 
 
 
authorities.Moreover, the use  of VC  may not  always be the most  appropriate solution in  all 
cases.At  this  stage,  it  is  not  clear  if  the  option  to  use  VC,  telephone-conferencing  or  other 
means  of  distant  communication  as  a  rule  is  appropriate  for  all  legal  proceedings  and  an 
efficient / proportionate approach. 

6.1.2.  Assessment  of 

the  options  for 

the  problems  ‘‘Paper-based 
communication  between  courts  is  time-consuming  and  costly’,  and 
‘Legal  barriers  to  the  acceptance  of  electronic  (digital)  evidence 
produced or stored in another Member State’ 

As is was stressed in the evaluation report, there are obstacles related to delays and costs for 
businesses and citizens caused by the failure to exploit the potential of modern technologies 
for speedier communication and direct taking of evidence. The most striking examples in that 
regard are the lack of use of electronic communication in exchanges between the authorities 
and courts of Member States which are still very predominantly paper-based on the one hand 
and the only marginal use  of electronic communication for the direct  taking of evidence, in 
particular  videoconferencing.  The  uptake  of  modern  technologies  is  not  currently  an 
obligation under the Regulation itself, but depends entirely on individual efforts in Member 
States  to  introduce  modern  technologies  in  the  judiciary  and  the  overall  move  towards 
digitisation, and this has led to very slow progress in absolute terms but also in comparison to 
the use of modern technologies in domestic settings. 

6.1.2.1  Option 2.1 

Option  2.1:  Sharing  of  best  practices  between  MS  (designated  authorities)  on  e-
communication and electronic exchange of documents under the Regulation  

Effectiveness 

The  option  is  expected  to  be  effective  in  addressing  the  problem,  however  only  to  a  very 
limited extent. While the sharing of best practices in theory bears the potential for improving 
and standardising procedures for communication and exchange of documents, the effect may 
only be achieved with considerable delay (as e-communication systems need to be updated, 
adapted  or  procured).  In  addition,  procedural  law  and  court  infrastructures  differ  at  the 
national level and legal barriers or data security concerns may nevertheless inhibit voluntary 
action based on best practices. As a result, this option may lead to adoption of best practices 
in some cases but not on a large scale. The option is therefore not effective in improving the 
overall  speed  and  efficiency  of  procedures  under  the  Regulation.  Likewise,  competing 
systems (paper-based and electronic) could increase legal uncertainty. The burden for citizens 
and businesses are not expected to decrease significantly. 

The option is efficient, since collecting and presenting best practices could be facilitated via 
existing  repositories  of  information  and  communication  (e.g.  the  eJustice  portal).  However, 
several aspects might lower the efficiency of this option in the short run, as costs for changing 
systems are borne by competent courts and legal practitioners, who might pass on part of the 
costs  via  fees.  In  the  end,  if  Member  States  choose  to  act  based  on  best  practice  examples, 

30 

 
 
 
benefits  for  citizens  and  businesses  include  timesavings,  while  courts  are  likely  to  recover 
initial investments at least partially.  

Proportionality  

The option is proportionate. It does not go beyond what is needed to address the problems and 
as simple as possible to address the problems at hand. It leaves scope for national decisions on 
whether to update systems and how 

Conclusion  

The  option  is  effective  to  a  limited  extent,  depending  on  whether  best  practices  lead  to 
changes in communication between courts and increased acceptance of electronic evidence in 
practice.  The  option  is  efficient,  as  the  costs  to  share  best  practices  are  likely  to  be  low, 
compared  to  potential  benefits  from  courts  adopting  and  integrating  best  practices  to 
communicate  using  electronic  means  and  accept  digital  evidence.At  the  same  time,  it  is 
proportionate, as the proposed instrument is simple and does not go beyond what is needed to 
address the problems. 

6.1.2.2 

 Option 2.2 (a) and 2.2 (b) 

Option  2.2  (a)  and  2.2  (b)  CEF  eDelivery  (eCodex)  should  be  the  default  channel  for 
electronic  communication  and  document  exchanges  between  the  agencies/courts  designated 
under  Regulation  (EC)  1206/2001  (as  well  as  the  Service  Regulation).  E-communication 
should replace, as a general rule, paper workflows. +2.2 (b) Specify in the Regulation that: (i) 
an evidence (e.g. declaration, testimony, authentic instrument) which is transmitted in form of 
electronic document through the appropriate communication system (see point 6)) should be 
considered  as  it  was  transmitted  in  original  (paper)  version  and  (ii)  the  quality  of  evidence 
may  not  be  denied  in  a  civil  proceedings  from  a  digital  evidence  which  is  produced  and 
preserved (stored) in another MS in accordance with the laws of that MSs. 

Effectiveness  

The  option  would  be  effective  in  addressing  the  problem  compared  to  the  situation  under 
baseline. Establishing the CEF eDelivery as the default channel for electronic communication 
ensures the use of electronic communication to coordinate ToE or transmit evidence obtained 
under the Regulation. This would increase the speed and efficiency of services. At the same 
time, this could reduce the burden for citizens and businesses in proceedings (e.g. costs due to 
delays).  Ensuring  the  equal  treatment  and  evidentiary  value  of  electronic  evidence  (and 
electronic  communication  overall)  to  the  paper-based  system  expected  under  the  baseline 
scenario is an important pre-condition for effectiveness. Legal certainty, speed and efficiency 
of  judicial  proceedings  increase  if  the  content  of  communication  (i.e.  electronic  evidence), 
and not just the act of communicating is to be electronic.  

31 

 
 
 
 
 
Efficiency  

The  efficiency  of  this  options  is  moderate  to  high,  depending  on  the  time-horizon  of  the 
assessment.  The  initial,  one-off  investment  costs  for  the  system  can  be  regarded  as  high. 
However,  apart  from  maintenance  and  updates,  the  marginal  cost  for  each  instance  of 
communication is negligible and faster than the use of postal services (likely to be used under 
the  baseline  scenario).  Using  postal  services,  the  costs  are  incurred  at  every  instance  of 
communication,  and  likely  to  increase  in  line  with  the  number  of  cross-border  cases.  Thus, 
costs  and  benefits  of  this  option  have  to  be  have  to  be  weighted.  In  the  long  run,  benefits. 
Whereas the costs for costs for postal services are incurred by courts in the Member States, 
the  new  portal  would  be  to  a  large  extend  be  developed  at  the  EU-level.  It  needs  to  be 
clarified further, who finances the tool and its maintenance. Given the use of existing portals 
and  depending  on  the  complexity  of  the  tool,  the  development  costs  will  likely  to  be  lower 
than  the  development  of  the  e-Codex  portal  itself  (24  Mil.  EUR).  In  any  case,  costs  at  the 
national level may be expected for staff training and adapting of institutional routines to  use 
the new tool.  

It is important to note, that the cost in operation would be largely determined by the extent, to 
which  the  tool  would  be  integrated  into  existing  systems.  At  the  national  level,  efficiency 
gains  may  be  reduced,  if  existing  IT  systems  need  to  be  adapted  or  the  time  required  to 
transfer communication between the newly established tool and any existing national tools. At 
the EU level, the costs It is assumed that the tool could also be used for other EU instruments 
(such as the Service Regulation), which has positive implications for the efficiency. 

Proportionality  

The option is proportionate, but a final assessment would depend on the clarification on the 
financing of the tool. The scope of the initiative is limited to what Member States could not 
achieve themselves, implementing a new EU-wide tool. It does not go beyond what is needed 
to  address  the  problem,  as  it  only  concerns  communication  under  the  Regulation.However, 
the principle of accepting electronic forms of evidence limits the room for national decisions 
on matters of procedural law. Overall, there is a justification for the option if as paper-based 
communication. 

Conclusion  

The option would be effective in addressing the problem compared to the baseline scenario. It 
would  reduce  paper-based  communication,  increasing  speed  and  efficiency  of  legal 
proceedings in which the Regulation is applied. At the same time, excluding the possibility to 
reject evidence on the basis that it is  electronic could greatly  reduce the burden for citizens 
and  businesses  to  provide  requested  evidence.  The  efficiency  of  this  options  is  moderate  to 
high,  depending  on  the  time-horizon  of  the  assessment.  While  initial  one-off  costs  are  high 
and implementation is expected to take time, the marginal cost for transmitting requests and 
documents  would  be  negligible.  In  addition,  the  tool  could  be  adopted  in  further  EU-
instruments,  which  would  increase  its  efficiency.  The  option  is  proportionate,  but  a  final 
assessment would depend on the clarification on the financing of the tool.   

32 

 
 
 
 
6.1.2.3  Option 2.3 

Option 2.3: Obliging designated authorities/courts under the Regulation to use certified e-
mails (furnished with qualified e-signatures) for their communications and exchange of the 
documents. 

Effectiveness  

The  option  will  reduce  paper-based  communication,  including  related  costs  for  postage  or 
printing. This could speed up communication and efficiency of judicial proceedings under the 
Regulation. As a result, the overall duration of proceedings under the Regulation and ensuing 
burdens for citizens and businesses is likely to decrease. 

Efficiency  

The option is considered to be moderately efficient. While the use of email was reported to be 
widespread  among  courts,  in  particular  for  informal  communication,  the  use  of  qualified  e-
signatures  is  not  yet  common.  Thus,  even  if  electronic  identification  frameworks,  such  as 
eIDAS,  are  currently  developed  by  the  European  Union,  few  Member  States  have  the 
infrastructures  or  experience  in  place  to  facilitate  qualified  e-signatures  within  public 
administration and the judiciary. Thus, the costs to implement the technical infrastructure in 
courts  are  likely  to  be  high  and  would  be  borne  by  the  Member  States.  Benefits  for  courts 
include decentralised network of identification among legal professionals. 

Proportionality  

The  option  is  not  proportionate.  While  the  cases  in  which  the  Regulation  is  applied  only 
constitute a small share of all cases, the courts would have to adapt their existing IT systems 
and communication procedures to comply with the option. This would greatly influence the 
room for national solutions for overall communication within the judicial system. 

Thus, although the option would effectively address the problem identified for the procedures 
under the Regulation, it would go beyond what is needed to address it. 

Conclusion  

The  option  would  be  effective  in  reducing  paper-based  communication  and  thereby  help  to 
speed up legal proceedings. This could lead to decreasing burdens for citizens and businesses. 
At the same time, the option is only moderately efficient. The one-off cost to implement an 
interconnected system facilitating electronic signatures at every competent court is considered 
high, compared to the number of cases in which the regulation is applied. Likewise, the option 
is  not  considered  proportionate,  as  it  goes  beyond  what  is  needed  to  address  the  problem 
while the costs are borne by the Member States alone.  

33 

 
 
 
 
7.  COMBINED EFFECTS OF THE PREFERRED OPTIONS AS A PACKAGE  

As a next step, first the baseline scenario and then the preferred policy package are assessed in 
relation to the following five criteria:  

  Effectiveness;  
  Efficiency;  
  Coherence; 
  Impacts on fundamental rights and the protection of personal data;  
  Environmental impacts.  

7.1.  Baseline scenario 

First, the baseline scenario is assessed in relation to these five criteria (in the next sub-section, 
the policy package selected is in turn assessed).  

The detailed assessment is included in Annex B. 

The results of the assessment can be summarised as follows:  

Criteria 

Assessment 

Rating   Summary 

Effectiveness 

0 

0 

impacts 
national 

Efficiency, 
incl. 
on 
judicial 
systems 

The effectiveness would be limited as the challenges identified in 
relation to the application of the Regulation are likely to continue 
to  exist.  On  this  basis,  problems  for  citizens  and  businesses  will 
persist, which limits the achievement of the policy objectives. In 
particular,  there  will  still  be  uncertainty  on  when  to  apply  the 
Regulation  and  concerning  the  concepts  of  courts  and  taking  of 
evidence. Delays and costs (e.g. based on failure to keep the time 
limits or to choose the most appropriate means to take evidence) 
are expected to remain at an equal level per case and increase at 
an overall level in line with the overall increase of cases. 

From  a  more  narrow  perspective,  in  the  baseline  scenario  the 
Regulation  is  expected  to  increase  the  efficiency  of  legal 
proceedings  as  taking  of  evidence  is  governed  by  a  flexible 
regime under which the most appropriate means to take evidence 
in  each  specific  legal  proceedings  can  be  used.  Some  room  for 
improvement,  however,  remains  e.g.  with  regard  to  the  share  in 
which  the  Regulation  will  be  used  in  the  future.  Although  this 
does  not  necessarily  mean 
legal 
proceedings  in  which  the  Regulation  will  not  be  applied  are 
expected to be inefficient, the non-mandatory nature will arguably 
contribute  to  legal  uncertainty  for  public  authorities,  legal 
professionals, citizens, and businesses. 

that  other  cross-border 

34 

 
 
 
Coherence 

0 

0 

on 

Impacts 
fundamental 
rights  and  the 
protection  of 
personal data 

Environmental 
impacts 

0 

The Regulation is largely coherent internally, as well as with other 
EU  policy  instruments,  which  have  similar  objectives,  and 
national law. Small challenges, including based on overlaps with 
the  Brussels  IIa  Regulation  and  difficulties  relating  to  the 
relationship  to  national  law,  would  persist  without  any  policy 
action.  

legal  uncertainty  and  delays 

The  evaluation  revealed  that  legal  practitioners,  citizens  and 
businesses  currently  face 
in 
proceedings  when  the  Regulation  is  applied.  As  a  result,  the 
current Regulation does not fully ensure access to justice and the 
use of the most effective remedy in judicial proceedings, when it 
comes to ToE across borders. These issues are expected to persist 
under  the  baseline  scenario  in  the  future.  At  the  same  time,  it  is 
not  expected  to  exert  any  impacts  on  the  future  protection  of 
personal data. 

Environmental  impacts  of  the  Regulation  under  the  baseline 
scenario  are  mainly  related  to  paper-based  communication  or 
effects from travelling to attend physical hearings/summons. The 
magnitude  of  this  impact  per  case  is  expected to  remain  roughly 
stable  (depending  on  innovations  in  communication  via  postal 
services or passenger travel). The overall environmental impact of 
the  Regulation  is  expected  to  increase  in  line  with  the  projected 
number of cases in which it is applied. 

Average rating 
and conclusion 

0 

Under  the  baseline  scenario,  the  problems  identified  in  the 
problem  assessment,  including  in  relation  to  costs  and  delays, 
would be likely to continue where the Regulation is applied..  

7.2. 

Policy Package 

Next, the policy package is first assessed in relation to the five criteria.  

The detailed assessment is to be found in Annex C. 

The results of the assessment can be summarised as follows: 

Criteria 

Assessment 

Rating   Summary 

Effectiveness 

+2 

Under  the  policy  package,  the  effectiveness  in  achieving  the 
policy  objectives  would  increase  compared  to  the  baseline 
scenario:  

35 

 
 
 
 
impacts 
national 

Efficiency, 
incl. 
on 
judicial 
systems 

  Legal  uncertainty  would  be  reduced  through  a  number  of 
clarifications  and  additions  (e.g.  the  definition  of  additional 
channels  to  take  evidence  and  clarification  of  the  concepts  of 
court  and  taking  of  evidence),  as  well  as  through  new 
awareness raising and guidance material.  

  The  efficiency  of  cross-border  judicial  proceedings  would  be 
improved, which would lead to a lower burden for citizens and 
businesses.  A  number  of  measures  would  help  to  reduce 
delays,  including  certain  clarifications,  the  strengthening  of 
electronic  communication  and  videoconferencing  as  well  as 
additional guidance and awareness raising.  

  Access to justice and the protection of the rights of the parties 
would be improved, including through the reduction of delays 
and  because  the  number  of  cases  in  which  the  Regulation 
would  be  applied  is  expected  to  increase.  Risks  relating  to 
electronic communications and videoconferencing, e.g. relating 
to confidentiality, would need to be addressed.  

+2 

The  implementation  of  the  policy  package  is  considered  to  be 
more efficient than the baseline scenario: 

  The  implementation  of  the  policy  package  is  associated  with 
comparatively high initial investments (i.e. capital investments, 
CAPEX) for public authorities that could be co-financed by the 
European  Commission.  Moreover, 
recurring  operational 
expenditures  (OPEX)  are  expected  to  be  incurred  by  public 
authorities  for  the  maintenance  of  the  necessary  hard-  and 
software.  Detailed  information  in  this  regard  is  available  in 
section 2.1.1 of Annex C. As regards the annual costs per court 
implementation,  and  operation  of 
for 
professional, high-end VC equipment (which is the largest part 
of  the  costs),  costs  are  estimated  to  be  in  the range  of  36,000 
Euro.  There  are  about  6,000  courts  in  the  EU,  of  which  a 
limited number has  already VC facilities. If all courts were to 
be equipped with one VC facility which appears unlikely, costs 
could amount to 216 million Euro in the EU. 

the  acquisition, 

  The  investment  into  technical  infrastructure  and  processes  is 
expected  to  make  legal  proceedings  more  efficient,  which  is 
expected to  decrease  necessary labour  costs.  This  could  mean 
that more legal proceedings could be handled by the same staff 
within  the  given  time.  In  addition,  the  necessary  investments 
are  balanced  by  decreased  costs  for  postal  service  providers, 
paper and office supplies, as well as archiving costs that would 
have to be invested in the future under the baseline scenario.  

36 

 
 
 
  The implementation of the policy package is expected to be a 
benefit for legal professionals, in particular lawyers. Although 
they  would  incur  costs  in  relation  to  understanding  the 
legislation  and  checking  the  extent  to  which  and  how  the 
legislation  would  apply  to  a  specific  legal  case,  this  is  not 
considered to differ from the baseline scenario. The reason for 
this  is  that  most  lawyers  do  not  have  to  deal  with  Regulation 
(EC)  1206/2001  on  a  case-by-case  basis.  Therefore,  the  time 
they  would  have  to  invest  are  considered  business-as-usual 
costs. However, the policy package is expected to reduce legal 
ambiguities compared to the baseline scenario. 

  Citizens  and  businesses  are  expected  to  benefit  from  the 
implementation  of  the  policy  package.  In  particular  non-
monetary benefits such as increased access to justice, freedom 
of  choice  (concerning  the  means  to  take  evidence  across 
borders that is most suitable for them), and decreased levels of 
stress  within  legal  proceedings  are  important  in  this  regard  – 
especially in relation to vulnerable persons. 

  Neither negative nor positive effects are expected in relation to 
the  economy  overall.  It  is,  however,  expected  that  positive 
economic  effects  of  the  policy  package  for  specific  types  of 
businesses  are  negative  effects  for  other  types  of  businesses. 
For  instance,  the  revenue  generated  for  IT  consulting  service 
providers, as well as internet and telecom providers through the 
implementation of the policy package can also be regarded as a 
loss  for  postal  service  providers  and  office  supply  providers. 
Thus, the economic effect is regarded as neutral overall. 

Coherence 

+1 

The coherence of the Regulation with EU and national law would 
be slightly improved compared to the baseline scenario.  

The Regulation would continue to be largely coherent internally, 
in  relation  to  EU  law,  national  law  and  bilateral  agreements.  In 
addition,  some  of  the  options  would  contribute  positively  to  the 
coherence  of  the  Regulation.  In  particular,  the  introduction  of  a 
tool for electronic communications and the recognition of digital 
the  encouragement  of 
evidence  (option  6.2)  as  well  as 
videoconferencing  (option  4.2)  are  in  line  with  and  support  the 
current  strategies  of  the  EU  Commission  in  the  context  of  the 
Digital agenda and the e-justice strategy. 

However,  the  small  uncertainties  identified  in  the  evaluation 
would persist. Notably, the use of ‘request’ and potential overlaps 
with the Brussels IIa Regulation would not be clarified.  

37 

 
 
 
+1 

on 

Impacts 
fundamental 
rights  and  the 
protection  of 
personal data 

Environmental 
impacts 

+2 

The  policy  package  addresses  several  issues  which  cause  legal 
uncertainty  and  delays  under  the  baseline  scenario.  At  the  same 
time, the policy package increases access to justice by promoting 
the use of distance communication to hear witnesses and affected 
parties.  However,  the  effect  of  the  policy  package  on  the 
protection of personal data is ambiguous and will largely depend 
on the implementation at the Member State level. 

of 

the 

use 

videoconferencing 

The  environmental  impacts  of  the  Regulation  under  the  policy 
package  scenario  are  mainly  related  proposed  changes  to  adopt 
electronic means of communication via CEF eDelivery (compared 
to paper-based communication under the baseline scenario) and to 
increase 
distance 
communication  (instead  of  physical  summons).  While  both 
channels  of  communication  consume  energy  in  operation  and 
resources  to  produce  the  equipment,  the  overall  impact  on  the 
sources, 
environment 
videoconferencing  (and  other  means  of  distance  communication) 
may only produce 7% of carbon emissions of physical meetings. 
At the same time, electronic communication has a smaller carbon 
footprint than equivalent standard mail (50% to 90% per unit). 

is  positive.  Based  on 

secondary 

and 

Average rating 
and conclusion 

+1.6 

The policy package performs better than the baseline scenario in 
relation  to  all  of  the  assessment  criteria.  It  brings  benefits  in 
particular  by  reducing  costs  and  delays (e.g. through  introducing 
an  electronic  communication  system  and  encouraging  the  use  of 
videoconferencing).  In  addition,  negative  environmental  impacts 
are reduced and coherence with other legal instruments continues 
to be ensured.  

7.3. 

 Impacts on fundamental rights and the protection of personal data 

The possibilities created by the e-CODEX electronic system would have a positive impact on 
the ability to exercise the right to an effective judicial remedy, and are therefore in conformity 
with  Article  47  of  the  Charter  of  Fundamental  Rights  since  electronic  communication  and 
document transmission enhances and reduces the time of the court proceedings. Stakeholders 
have  pointed  out  that  Article  47  also  guarantees  the  right  to  an  impartial  and  independent 
tribunal,  and  that  in  order  be  in  conformity  with  that  Article,  future  governance  and 
coordination  of  e-CODEX  and  e-CODEX-related  activities  need  to  ensure  that  the  system 
does  not  interfere  with  the  functioning  of  the  judiciary  is  guaranteed26.  Moreover,  the 
electronic  method  of  service  together  with  the  proposed  ‘digital  by  default’  principle  is 

26 https://ec.europa.eu/info/law/better-regulation/initiatives/ares-2017-3600084/feedback/F2268_en 

38 

 
 
 
 
                                                            
expected to not only have a positive effect on access to justice, but also contribute to faster 
proceedings.  Furthermore,  it  reduces  costs  or  failures  of  service  of  documents  experienced 
otherwise, where an inefficient method to effect service would have been chosen due to a lack 
of  options  under  the  baseline  scenario.  Moreover,  citizens  will  have  an  increased  access  to 
justice, freedom of choice (concerning the means to take evidence across borders that is most 
suitable  for  them),  and  decreased  levels  of  stress  within  legal  proceedings  are  important  in 
this regard – especially in relation to vulnerable persons. 

Likewise,  the  clarification  provided  by  the  proposal  on  the  definitions  and  concepts  (i.e. 
‘court’)  would  reduce  legal  uncertainty  and  speed  up  procedures  under  the  Regulation  in 
practice.  

Next  under  the  baseline  scenario,  the  protection  of  personal  data  is  not  considered  to  be 
affected  by  the  current  Regulation.  External  factors  influencing  data  protection  and  privacy 
are the General Data Protection Regulation (GDPR) and the growing threats to cybersecurity 
(also  affecting  public  authorities).  After  entering  into  force  in  May  2018,  the  GDPR  is 
expected to increase awareness on the issue, prompt actions to ensure security and integrity of 
databases and swift reactions to breaches of privacy in the judiciary. However, data protection 
in the judiciary will continue to be largely determined by national decisions and the integrity 
of postal services  or  the agencies/authorities involved in the process of cross-border service 
under  the  Regulation.  At  the  same  time,  the  incidence  of  attempted  attacks  on  public  IT 
infrastructure  is  expected  to  increase  until  2030.  This  will  also  affect  the  judiciary  in  the 
Member States, depending on the proliferation of electronic communication, court IT systems 
and  the  interconnectedness  with  other  IT  systems  or  databases.  Lastly,  the  wide  variety  of 
potential uses for social media corresponds to an equally broad range of legal issues relating 
to these communication channels. However, it should be noticed that documents will not be 
sent via social media, but these networks will be only used to sent information notice.  

8.  CONCLUSION AND EVALUATION AND MONITORING FRAMEWORK 

Based  on  the  assessment  and  ratings  provided  in  the  previous  section,  the  policy  package 
performs better than the baseline scenario in relation to all of the assessment criteria. Thus, it 
is proposed to amend the current Regulation.  

For  this  purpose,  a  sound  monitoring  system  of  the  Regulation  should  be  put  in  place, 
including  a  comprehensive  set  of  qualitative  and  quantitative  indicators,  and  a  clear  and 
structured reporting and monitoring process. This is important to ensure that the amendments 
are implemented efficiently in the Member States and to verify if the Regulation is successful 
in achieving its specific objectives. 

It  should  be  stressed  out  the  importance  of  the  European  Judicial  Network  in  civil  and 
commercial  matters  (EJN  civil)  in  the  implementation  and  application  of  the  Regulation  on 
Tacking of Evidence. This  forum is  a key factor  in  getting relevant feedback  from  Member 
States (from the field) on the application of the various instruments and in identifying the real 
practical  problems  as  it  brings  together  national  ministries  as  well  as  the  central  authorities 
and  agencies  dealing  with  the  implementation  of  the  Regulations.  In  the  past,  the  EJN 

39 

 
 
 
organized annual dedicated meetings on the analysis of the application of the Regulations on 
service of documents and taking of evidence. This practice will be continued in the future as 
well.  

The EJN also created a working group on assessing options of accurate data collection with 
regard  to  the  application  of  the  instruments,  this  forum  could  contribute  further  work  to 
analysing possibilities of collecting data on the Regulations. 

The model of bilateral (peer to peer) meetings between central bodies of the Member States in 
the  margins  of  the  EJN  contact  point  meetings,  discussing  and  finding  solutions  to  difficult 
cases,  that  has  been  established  for  other  EU  instruments,  could  be  extended  to  the 
Regulations on Service of Documents and Taking of Evidence (this has been in fact proposed 
by some of the Member States in the latest meeting dedicated to the service of documents, in 
December 2017, in Tallinn). 

Assessment 
criterion 
Horizontal 
aspects 

Indicator 

Estimated  no.  of  cases  in  which  the  Regulation  has  been 
applied 
Estimated  proportion  of  cross-border  cases  in  which  the 
Regulation is applied 

reduce 

To 
legal 
uncertainty 

further 
To 
improve  the 
efficiency 
and  speed  of 
judicial 
proceedings 
and  reduce 
the  burden 
for  citizens 
and 
businesses 

Estimated  no.  of  citizens  and  legal  persons  affected  by  the 
Regulation in practice per Member State and year, based on 
the  estimated  no.  of  cases  in  which  the  Regulations  are 
applied 

Case  law  at  national  level  pointing  to  uncertainties  (e.g. 
ambiguity on certain concepts) 
Case  law  at  EU  level  pointing  to  uncertainties (e.g.  lack  of 
clarity on certain concepts) 
Number  of  cases  in  which  direct  taking  of  evidence  is 
applied 
Number of cases in which videoconferencing is applied 
Number  of  cases  in  which  evidence  is  submitted  in 
electronic formats 
Quantitative  information  on  (electronic)  communication 
under the communication, incl.: 

-  Number  of  interactions  needed  to  execute  and 
complete  a  request  (using  the  CEF  eDelivery  tool 
and  other  channels  used 
for  communication 
attempts); 

-  Frequency  of  cases,  in  which  the  rectification 

procedure is (necessary following a request); 

-  Frequency  of  communications  needed  to  rectify  a 

40 

Frequency 

Once a year 

for 

least 

At 
every 
evaluation,  i.e. 
3-5 
every 
years 
At 
every 
evaluation,  i.e. 
every 
3-5 
years 
/ 

least 

for 

/ 

Once a year 

Once a year 
Once a year 

for 

least 

At 
every 
evaluation,  i.e. 
every 
3-5 
years 

 
 
 
 
Frequency 

Once a year 

for 

least 

At 
every 
evaluation,  i.e. 
3-5 
every 
years 

for 

least 

At 
every 
evaluation,  i.e. 
every 
3-5 
years 

/ 

/ 

Assessment 
criterion 

Indicator 

request; 

electronic 

Data  on  the  duration  of  requests  under  Regulation  (EC) 
1206/2001 
[It should be possible to prepare this based on the new tool 
for 
contains 
communications, 
automatic/manual  logging  of  all  steps  for  individual  cases 
(at  least  for  the  procedure  via  competent  courts  and  the 
procedure  according  to  Article  17).  It  would  be  useful  to 
facilitate the generation of case statistics in this tool.] 
Data  on  costs  of  proceedings  in  civil  and  commercial 
matters, including:  

which 

-  Cost  for  set-up  and  maintenance  of  the  tool  for 

electronic communication 

-  Compliance  costs,  incl.  administrative  burden  and 

technical systems cost: 

o  Filing  forms  for  requests  for  cooperation  in 

taking of evidence (e.g. printing costs); 

o  Translation costs; 

-  Citizens/businesses involved in legal proceedings:  

o  Costs for legal advice;  
o  Time  spent  on  the  taking  of  evidence  (incl. 

hassle costs e.g. delays). 

Reasons for delays and undue costs (including the extent to 
which these are related to the functioning of the Regulation 
and their workflows) 
[This could also be supported by the new tool for electronic 
communication,  which  is  expected  to  contain  e.g.  the 
number  of  correspondences  per  case.  The  latter  indicates 
whether  requests  can  be  dealt  with  in  a  straightforward 
manner  or  whether  clarifications  are  needed  between  the 
courts.] 
No.  and  %  of  complaints  of  citizens  relating  to  access  to 
justice and procedural rights 
No. and  % of final  court rulings (at EU and national  level) 
establishing breaches of the Regulations 

improve 
To 
access 
to 
justice  and 
protection of 
procedural 
rights 
parties 
the 
proceedings 

of 
to 

41 

 
 
 
 
 
 
9.  REFIT (SIMPLIFICATION AND IMPROVED EFFICIENCY) 

REFIT Cost Savings – Preferred Option(s) 
Description 

Amount 

Comments 

Costs savings 
related to the 
mandatory 
application of the 
Regulation 

Reduced costs by 
defining other 
means of cross-
border taking of 
evidence  

Costs savings by 
making the use of 
videoconferencing 
mandatory if a 
person needs to be 
heard from 
another Member 
State 

Annual cost 
savings for the use 
of e-CODEX as a 
mandatory 
channel for 
transmitting and 
receiving 
agencies/courts 

  Reduce time spent on 
the taking of evidence, 
reduce costs for legal 
advice; 
  Reduce legal 

uncertainty about the 
use of regulation 

  Reduce delays and 

costs 

  Reduce time-cost for 
legal professions 

Beneficiaries: citizens 

Beneficiaries: citizens, public 
authorities,  

216 million Euro across the 
EU/8 milion Euro per 
Member State 

Beneficiaries: citizens 

Beneficiaries: public authorities 
and citizens  

Public authorities are expected to 
save costs in relation to labour 
costs, paper, envelopes, printer 
cartridges, shelves, archiving 
material, and archiving space. 

Global costs: Approx.. 6 to 
15 million Euro/year across 
the EU 

Costs savings for public 
authorities: 300.00 EUR 
across the EU 

Reduced costs by 
accepting 
electronic (digital) 
evidence produced 
stored in another 
Member State 

  Reduced costs related 

to paper-based 
communication  
  Avoid costs using 
postal service  

  Decrease labour costs  

42 

Beneficiaries: public authorities 
and citizens  

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
 
 
Costs savings by 
new definition of 
‘courts’ 

  Low costs (for drafting 
of the text and raisining 
awareness of legal 
proffessions 

Beneficiaries: public authorities 
and citizens  

Costs savings by 
replacing the 
notion 'taking of 
evidece'(Article 1) 
with 'other judicial 
acts'  

  Low costs (for drafting 
of the text and raisining 
awareness of legal 
proffessions 

Beneficiaries: public authorities 
and citizens  

The  initiative  is  included  in  the  Commission  Work  Programme  2018  under  the  REFIT 
initiatives  in  the  Area  of  Justice  and  Fundamental  Rights  Based  on  Mutual  Trust27.  The 
Commission also looked at opportunities to simply and reduce burdens in relation to taking of 
evidence in particular at the level of the citizens and businesses involved in cross-border civil 
judicial  proceedings.  The  nature  of  this  legislation  means  that  it  applies  to  all  cross-border 
civil proceedings. The beneficiaries of this proposal range from citizens to legal professions 
and public administration.  

In  the  framework  of  the  REFIT  Platform,  stakeholders  recommended  to  the  Commission  to 
explore  possibilities  for  reducing  time  in  taking  of  evidence  in  other  EU  Member  States.  It 
was  also  observed  that  numbers  of  frequently  used  channels,  such  as  taking  of  evidence 
through consular agents, or diplomatic officers are not acknowledged by the Regulation. 

The proposal will bring clarification in respect with the (mandatory) nature of the regulation, 
which will make it clear when the regulation is to be applied. The proposal will also establish 
other means of taking of evidence in addition to the existing two ways which will enrich the 
tools available under the regulation and will also stimulate its application. It will also improve 
the definition of 'courts' under the regulation, which will expand the number of authorities that 
can use the tools of the regulation. The proposal establishes a broader set of judicial actions 
which can constitute a 'taking of evidence' under the Regulation, which will lead to a higher 
number of cases in which citizens/business can benefit from the application of the Regulation.  

The impact assessment estimated annual cost savings of approx.. EUR 6 to 15 million Euro 
per  year  across  the  EU  generated  by  the  transmission  of  documents  via  eCodex.  Citizens, 
business  and  public  administration  will  also  benefit  from  reduced  hassle  costs  through 
transmission  of  the  evidence  through  electronic  channels  between  the  designed  authorities. 

27 Commission Work Programme 2018 – An agenda for a more united, stronger and more democratic 
Europe, COM(2017) 650 final of 24.10.2017, Annex II point 10, p.4. 

43 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                            
The regulation will also make it clear that evidence which is transmitted in form of electronic 
document  trough  the  appropriate  communication  system  would  be  considered  as  it  was 
transmitted in original (paper) and will provide mutual recognition of digital evidence which 
is  produced  and  stored  in  another  Member  State.  This  will  not  only  reduce  the  burden  for 
citizens and business in proceedings but will also limit the instances where electronic proof is 
denied  and  will  also  be  facilitating  cooperation  between  national  courts  across  the  EU.  The 
proposal establishes also the default rule of use of videoconferencing in cross-border taking of 
evidence (hearing a person in another Member State). The impact assessment estimated that 
this lead to savings of 216 million Euro across the EU/8 milion Euro per Member State.  

All  these  proposals  will  make  the  legal  framework  more  likely  to  be  applied  and  more 
coherent.

44 

 
 
 
  
ANNEX 1: PROCEDURAL INFORMATION 

1. 

Lead DG, agenda planning and work programme 

impact  assessment  and 

This 
Directorate-General for Justice and Consumers (JUST). 

related 

the 

initiatives  are  a 

responsibility  of 

the 

The project has been added to the 2018 European Commission work programme28 under the 
section 'An Area of Justice and Fundamental Rights Based on Mutual Trust' as well as to the 
Regulatory  Fitness  and  Performance  Programme  under  'Priority  7  –  Simplification  and 
Burden Reduction for upholding the rule of law and linking up Europe’s Justice Systems'. It 
envisages "to address issues of keeping up with digitalisation, using of the method of ‘direct 
taking  of  evidence’,  which  ensures  that  the  courts  take  evidence  directly  in  the  territory  of 
another Member State, ensuring legal certainty for courts, parties and lawyers, and clarify the 
grounds for refusing the execution of cooperation requests"29. 

The aim to improve the framework of judicial cooperation within the EU is also in line with 
the objectives of the Commission set by the Digital Single Market Strategy30. In the context of 
e-Government  the  Strategy  expresses  the  need  for  more  actions  to  modernise  public 
(including  judicial)  administration,  achieve  cross-border  interoperability  and  facilitate  easy 
interaction with citizens. 

Organisation and timing 

2. 
Work on the preparation of this initiative started on 24 October 2017 with the 2018 European 
Commission work programme.  The impact assessment was prepared with the involvement of 
JUST  C.3  (Data  protection)  as  well  as  the  following  Services  through  an  Inter-Service 
Steering Group (ISG) chaired by the Secretariat General:  

the Commission's Legal Service;  

Directorate-General for Informatics; 

Directorate-General for Communications Networks, Content; 

Directorate-General for Internal Market, Industry, Entrepreneurship and SMEs; 

Directorate-General for Communication; 

Directorate-General for Employment; 

Directorate-General for Economic and Financial Affairs; 

Directorate-General for Migration and Home Affairs; 

28  COM(2017) 650 final, Annex II. 
29  Regulatory Fitness and Performance Programme - REFIT Scoreboard Summary of 24 October 2017, p. 29. 
30  COM(2015) 192 final, p. 16. 

45 

 
 
 
 
                                                            
Directorate-General for Research and Innovation; 

Directorate-General for Taxation and Customs Union and 

Directorate-General for Competition. 

The Steering Group foresaw three meetings. A first meeting took place on 24 October 2017. 
The following ISG meetings were also scheduled:  

•  6 April 2018:  

2nd  meeting  on  the  draft  evaluation  reports  and  draft  impact 
assessments  

•  Beginning of May 2018:   3rd meeting on the draft legislative proposals. 

On  each  occasion,  the members  of  the  Steering  Group  are  given  the  opportunity  to  provide 
comments orally and/or in writing on the draft versions of the documents presented. 

3.Consultation of the Regulatory Scrutiny Board 
The  impact  assessment  report  was  submitted  to  the  Regulatory  Scrutiny  Board  on  9 April 
2018. The Regulatory Scrutiny Board reviewed the draft impact assessment at its meeting of 3 
May 2018 and delivered a positive opinion with comments on 7 May 2018. DG Just took into 
account the Boards recommendations and the report explains better the relationship between 
the two initiatives (Service of Documents Regulation) for judicial cooperation and the wider 
context.  The  impact  assessment  explains  better  why  the  Regulation  represents  a  big  step 
forward to the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial 
Matters.  The  major  problems  and  the  baseline  are  now  better  identified  and  explained.  The 
explanation  of  subsidiarity  of  the  instrument  and  of  the  EU  value  added  was  enhanced. 
Moreover,  the  conclusions  of  the  evaluation  regarding  the  effectiveness  have  been  further 
developed and the policy options now focus on the main elements (electronic communication 
and  the  use  of  video-conferencing)  and  the  assessment  of  these  main  issues  has  been 
developed in the main text.. 

4.Evidence, sources and quality 

The  Commission  consulted  widely  and  received  input  from  various  sources  for  this  impact 
assessment work. 

Evidence  used  in  this  impact  assessment  was  gathered  following  a  consultation  strategy, 
which  included  an  external  study,  a  consultation  with  renowned  experts  in  the  field 
(practitioners as well as members of academia) through the Expert group on Modernisation of 
Judicial Cooperation in Civil and Commercial Matters31 and a public consultation through an 

31   More information on the Expert group on Modernisation of Judicial Cooperation in Civil and Commercial 

Matters (E03561) can be found under 
http://ec.europa.eu/transparency/regexpert/index.cfm?do=groupDetail.groupDetail&groupID=3561&news=
1 

46 

 
 
 
 
                                                            
online  questionnaire  accompanied  by  a  consultation  document32.  The  public  consultation 
strategy is described in detail in Annex 2. 

A  workshop  with  Stakeholders  will  be  held  on  16  April  2018  for  further  consultation  on 
expected impacts. 

On  4  May  2018  the  Commission  will  also  hold  a  meeting  with  Member  States'  experts  on 
international  civil  procedure  to  inform  them  of  the  planned  initiative  and  the  options 
envisaged. 

Furthermore,  the  following  discussions  took  place  within  the  framework  of  the  European 
Judicial Network in civil and commercial matters (EJN): 

  30  November–1  December  2017,  Tallinn:  dedicated  meeting  of  the  EJN  addressing 

practical problems and possible improvements of the Regulation. 

  14–15 November 2016:  dedicated meeting of the EJN addressing  practical problems 

and possible improvements of the Regulation 

  20 November 2013: meeting of the EJN dedicated to the evaluation of the application 

of the Regulation on taking of evidence 

In addition, the following studies and reports haven been taken into consideration: 

2017: 

•  European Parliament resolution of 4 July 2017 with recommendations to the Commission 
on common minimum standards of civil procedure in the European Union (2015/2084(INL) 

•  An evaluation study of national procedural laws and practices in terms of their impact on 
the free circulation of judgments and on the equivalence and effectiveness of the procedural 
protection of consumers under EU consumer law (launched by the Commission, carried out 
by a consortium led by MPI Luxembourg) – final report delivered in June 2017. 

2016:  

•  Study prepared by a consortium led by University of Maribor (SI) delivering a comparative 
analysis  of  the  law  of  evidence  in  26  Member  States  –  this  study  was  carried  out  in  the 
context of an action grant under the EU Justice Programme, the project was finished in spring 
2016. 

2014: 

•  A  large-scale  questionnaire  (containing  more  than  50  questions)  was  drawn  up  together 
with  the EJN and  answered by the Member States  concerning the practical operation of the 
Regulation on taking of evidence. 

32  Responses to the public consultation and consultation document available here: 
https://ec.europa.eu/eusurvey/Service_and_Evidence/management/results 

47 

 
 
 
                                                            
 
2012: 

•  Study  on  the  application  of  articles  3(1)(C)  and  3,  and  articles  17  and  18  of  the  Council 
Regulation  (EC)  No  1206/2001  of  28  May  2001  on  cooperation  between  the  courts  of  the 
Member  States  in  the  taking  of  evidence  in  civil  or  commercial  matters  (launched  by  the 
Commission,  carried  out  by  Mainstrat  and  the  University  of  the  Basque  Country)  –  final 
report adopted in June 2012. 

The  Commission  services  have  taken  into  account  the  observations  from  all  the  above-
mentioned sources in the impact assessment. 

48 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
ANNEX 2: STAKEHOLDER CONSULTATION 

(including the outcome of the public consultation on Council Regulation (EC) no 
1206/200133)  

The Commission consultation strategy included many different and complementary 
ways of consulting stakeholders: 

  Member  States  gave  their  opinion  within  two  dedicated  meetings  of  the  European 
Judicial Network addressing practical problems and possible improvements of the two 
EU Regulations (14-15 November 2016, Bratislava and 30 November  – 1 December 
2017,  Tallinn).    In  addition,  a  dedicated  meeting  with  the  representatives  of  the 
Member States was organized on 3 April 2018. 

  Dedicated  meeting  with  stakeholders  (on  16  April  2018).  A  workshop  composed  of 
selected  stakeholders  with  particular  interest  in  issues  relating  cross  border  legal 
proceedings. 
  Industry  and  business  organisations,  Trade  Unions,  consumer 
organisations,  professionals'  associations  and  academic  institutions  and  think  tanks 
with  the  widest  possible  representation  across  EU  or  worldwide  were  invited  with  a 
view to share their views on the initiative.  

  Expert group meetings (on 8-9 January 2018, 6 March 2018, 27-28 March 2018 and 
24 April 2018). The Expert group on Modernisation of Judicial Cooperation in Civil 
and Commercial Matters was created in the end of December 2017 (the detailed list of 
experts  is  available  in  the  Register  of  Commission  expert  groups  accessible  on 
http://ec.europa.eu/transparency/regexpert/index.cfm?do=groupDetail.groupDetail&gr
oupID=3561&news).  

  Publication of the Inception Impact Assessment (on 5th December 2017) brought about 
2 replies, both giving positive feedback in support of the objectives of this regulation 
and of its intended review (albeit in ways fully safeguarding the right to be heard).  

  A  single  public  consultation  was  launched  to  address  both  Regulation  1393/2007  on 
service of documents and Regulation 1206/2001 in order to receive input from all the 
concerned  stakeholders,  and  in  particular,  those  which  are  engaged  in  cross  border 
legal proceedings. Members States were also invited to provide their input. The public 
consultation was launched on 8 December 2017 and ended on 2 March 2018 (which 
complies  with  the  minimum  standard  of  12  weeks  for  public  consultations  of  the 
European  Commission).  131  contributions  from  27  MS  were  submitted  and  the 

33  

Council Regulation (EC) no 1206/200133 of 28 May 2001 on cooperation between the 

courts of the Member States in the taking of evidence in civil or commercial matters 

49 

 
 
 
 
 
 
 
 
                                                            
 
country  with  the  largest  overall  contributions  was  Poland,  followed  by  Germany, 
Hungary  and  Greece.  Approximately  64%  of  replies  were  made  on  behalf  of  the 
judiciary,  while  the  rest  were  mainly  from  associations  of  legal  professions  at  a 
national level or European lever, notaries, bailiffs, NGOs, academics. In addition, 13 
replies were received from the public authorities of 9 Member States (Austria, Czech 
Republic Estonia, Finland, France, Germany, Latvia, Poland and UK). 

  A Commission study providing a comparative legal analysis of laws and practices of 
the  Member  States  on  service  of  documents  was  carried  out  by  a  consortium 
(University Firenze, University Uppsala and DMI) – published in November 201634; 

  An evaluation study of national procedural laws and practices in terms of their impact 
on  the  free circulation of  judgments  and  on  the  equivalence  and effectiveness of the 
procedural  protection  of  consumers  under  EU  consumer  law  was  launched  by  the 
Commission  (carried  out  by  a  consortium  led  by  MPI  Luxembourg)  –  final  report 
delivered in June 201735. 

Most of the stakeholders supported the idea of amending as well as  the Council Regulation 
(EC) no 1206/2001 of 28 May 2001 on cooperation between the courts of the Member States 
in the taking of evidence in civil or commercial matters 

1. Application of the Regulation 

In general, when asked whether they have been involved in cross-border judicial proceedings, 
73 % of the stakeholders responded affirmatively. However, the Regulation (EC) 1206/2001 
has only been applied by 20 % of the respondents. 

According to the MPI study, the national reports and interviews showed a clear tendency to 
by-pass the provisions of the Evidence Regulation, which are very frequently considered as 
cumbersome, bureaucratic and time-consuming. With the background of the ECJ Decision in 
ProRail,109  direct  taking  of  evidence  in  a  different  Member  State  tends  to  be  performed 
outside the boundaries of the Regulation (EC) 1206/2001.36 

However,  currently  there  is  no  provision  which  clearly  expresses  that  the  Regulation  (EC) 
1206/2001  is  mandatory  whenever  the  evidence  to  be  assessed  in  a  legal  proceedings  is  in 
another Member State.  

Within  the  MPI  study,  when  asked  to  evaluate  the  optional  nature  of  the  Regulation  (EC) 
1206/2001  40.38%  of  the  stakeholders  consulted  stated  that  it  is  ‘Counterproductive  as  it 
creates too much uncertainty in respect of the procedure that should be used’, while 59.62% 

34 

at 
http://collections.internetmemory.org/haeu/20171122154227/http://ec.europa.eu/justice/civil/files/studies/ser
vice_docs_en.pdf 

Available 

35  Available  at  https://publications.europa.eu/en/publication-detail/-/publication/531ef49a-9768-11e7-b92d-

01aa75ed71a1/language-en.  

36 Study of MPI Luxembourg, paragraphe 242, p. 114. 

50 

 
 
 
 
 
                                                            
answered that it is ‘Welcome as it allows for the use of the most efficient tool for the case at 
hand’37. 

Some stakeholders reported that, especially in relevant cross-border cases, they still prefer to 
avoid resorting to the ER and to summon the witness directly to the court. This predilection is 
determined  not  only  by  the  sometimes  difficult  practical  coordination  between  the  courts 
involved,  but  also  by  concerns  about  the  preservation  of  the  principle  of  immediacy  in  the 
assessment  of  evidence.  A  judge  from  Romania  additionally  reports  that  parties  are  always 
willing to share the expenses necessary for keeping the gathering of evidence ‘local’, as far as 
concretely  feasible  (e.g.  to  cover  the  costs  necessary  for  a  local  expert  to  carry  out  the 
technical investigation abroad, to pay for the witness’s travel/accommodation expenses). 

In the public consultation, when asked if Regulation (EC) 1206/2001 should comprehensively 
and  exhaustively  govern  the  taking  of  evidence  from  another  Member  State  in  civil  and 
commercial  matters,  unless  there  is  a  specific  EU  instrument  which  regulates  cooperation 
separately taking into account the specificities of its particular field, 44 % of the stakeholder 
strongly agreed with this proposal, another 42 % tended to agree with it. On the contrary, 8 % 
of them tended to disagree with this proposal and 5 % strongly disagreed. The overwhelming 
majority  of  the  respondents  stating  an  opinion  supported  the  comprehensive  and  exhaustive 
application of the Taking of Evidence Regulation. 

2. Difficulties in the application of the Regulation 

2.1. Costs 

In general terms, the costs of litigation are considered one of the main hurdles to cross-border 
litigation. It may indeed not impact on the recognition or enforcement of a decision (very few 
cases  have  been  reported  in  this  sense),  but  it  certainly  deters  parties  from  litigating  cross-
border; one step backwards, it prevents entering into cross-border commercial relations.  

According to the MPI Study, most national courts in cross-border cases still avoid resorting to 
the Regulation because the taking of evidence in another Members state generates costs. This 
predilection is caused not only by the sometimes difficult practical coordination between the 
courts involved, but also by concerns about the preservation of the principle of immediacy in 
the assessment of the evidence.  

When asked if taking of evidence in another Member State generated disproportionate costs, 
52% of the stakeholders did not respond while 29% do not have an opinion. 

37 Study of MPI Luxembourg, paragraphe 257, p. 122. 

51 

 
 
 
 
                                                            
52 

21 

17 

29 

1 

7 

Strongly
agree

Tend to
agree

Tend to
disagree

Strongly
disagree

No Answer

Do not
know/ No
opinion

2.2. Language 

The  stakeholders  consulted  in  the  MPI  study  stated  that  the  language  issue  appears 
recurrently: the need to translate the form (and the questions) into a language accepted by the 
requested Member States raises problems with the accuracy of the translation itself and with 
the costs38. Some Member States accept the possibility of not using translations or interpreters 
if  the  language  of  the  person  is  sufficiently  mastered  by  the  court  and  the  parties  (France, 
Germany), but this still seems to be exceptional. In practice, it is normally the court system 
that will pay the interpreter; however, in some Member State it is the parties who shall bear 
the  costs    (Latvia)  and  with  difficulties  finding  interpreters  (in  some  cases,  as  reported  for 
Greece, due to the low fees they are allowed to charge)39.  

Within the public consultation, stakeholders were asked to react to the statement if the person 
involved  in  cross  border  proceedings  encountered  difficulties  because  of  the  fact  that  the 
language  of  the  proceedings  was  a  foreign  language  (especially  he/she  had  to  bear 
disproportionate costs):   

38 As criticised by a Belgian academic and 2 Belgian judges, a Bulgarian lawyer, a Bulgarian judge, a Croatian 
judge, a French lawyer, a Finnish judge, an Italian lawyer, a Latvian ministerial officer, and a Spanish court 
clerk. 38 Study of MPI Luxembourg, paragraph 251, p. 119. 

39 Study of MPI Luxembourg, paragraph 247, p. 116. 

52 

 
 
 
 
 
 
 
                                                            
60

50

40

30

20

10

0

50 

Other

39 

Public Authority

Representative Organisation of a
legal profession

Bailiff

Lawyer

Judiciary

17 

9 

10 

2 

Strongly
agree

Tend to
agree

Tend to
disagree

Strongly
disagree

Do not
know / No
opinion

No
answer

2.3.Delays 

When  asked  if  the  taking  of  evidence  in  another  Member  State  caused  a  disproportionate 
delay in the judicial proceedings, almost half of the respondents giving an opinion tended to 
disagree with this statement, around 10 % strongly disagreed:  

36 

41 

24 

6 

7 

13 

Strongly
agree

Tend to agree

Tend to
disagree

Strongly
disagree

Do not know/
No opinion

No Answer

53 

 
 
 
 
 
 
 
 
 
 
3. Use of the means of taking of evidence under the Regulation   

3.1. The traditional method through requesting – requested courts (Article 2) 

The  public  consultation  asked  the  stakeholders  if  they  prefer  taking  of  evidence  through  a 
requested court in another Member State, pursuant to Article 2 of Regulation (EC) 1206/2001, 
to the direct method of taking of evidence (as foreseen in Article 17 of the Regulation). The 
answers  to  this  question  were  quite  balanced:    43  %  of  the  respondents  stating  an  opinion 
tended to prefer taking evidence through a requested court, 33 % strongly preferred it. 18 % 
tended preferring the direct method of taking evidence, while only 5 % strongly preferred the 
latter.  

40

35

30

25

20

15

10

5

0

Strongly
agree

Tend to
agree

Tend to
disagree

Strongly
disagree

Do not
know / No
opinion

No
answer

3.2. Direct taking of evidence (Article 17) 

Other

Public Authority

Representative Organisation of a
legal profession

Bailiff

Lawyer

Judiciary

When  asked  if  it  should  be  generally  permitted  to  a  court  from  a  Member  State  to  take 
evidence in the territory of another Member State directly and without prior consent of that 
Member  State,  provided  that  no  compulsion  is  applied,  Out  of  the  respondents  stating  their 
opinion, 31 % strongly agreed with this proposal, 33 % tended to agree. On the contrary, 19 
% tended to disagree, while 17 % of them strongly disagreed:  

54 

 
 
 
 
 
 
 
 
32 

34 

20 

17 

22 

Strongly
agree

Tend to
agree

Tend to
disagree

Strongly
disagree

Do not
know/ No
opinion

3.3. Alternative methods  

3 

No answer

3.3.1. Methods outside the scope of the Regulation 

When  asked  about  whether  the  ways  of  taking  evidence  abroad  regulated  in  the  Regulation 
(EC)  1206/2001  are  not  attractive  if  there  is  the  opportunity  to  use  methods  outside  of  the 
scope of the Regulation (e.g. summoning a witness or party directly to the court or instructing 
an  expert  to  carry  out  investigations  abroad),  most  of  the  stakeholders  did  not  have  an 
opinion:  

49 

Strongly
disagree

Do not know /
No opinion

No answer

16 

Representative Organisation of a legal profession

6 

60

40

20

0

Strongly agree

Tend to agree Tend to disagree

24 

24 

Other

Public Authority

8 

Bailiff

Lawyer

Judiciary

3.3.2. Videoconferencing  

55 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
In  the  MPI  study,  stakeholders  indicated  that  there  are  technical  problems  to  carry  out 
videoconferences, since not all involved authorities have the same IT infrastructure (a lawyer 
from  Cyprus,  a  Finnish  judge,  an  Hungarian  court  clerk,  a  Maltese  registrar,  a  Romanian 
lawyer); they are also time-consuming for judges, parties and witnesses   (a Finnish judge, a 
judge and a court clerk from Spain). Nonetheless some interviewees argue in favour of the use 
of new technologies and advice a more intensive promotion thereof (a German lawyer)40. 

However, in the public consultation, most of the stakeholders indicated that as a rule, a person 
with residence in another Member State should be heard through videoconferencing instead of 
being summoned in person to a foreign court:  

44 

39 

17 

17 

9 

2 

Strongly
agree

Tend to
agree

Tend to
disagree

Strongly
disagree

Do not know/
No opinion

No answer

In  this  respect,  the  The  Council  of  Bars  and  Law  Societies  of  Europe  pointed  out  that  is 
important  that  the  EU  develops  mandatory  minimum  standards  as  to  the  technical 
arrangements that should be in place for the use of videoconferencing to ensure as much as 
possible a true-to-life hearing experience including full communication/interaction of all the 
parties to the procedure with the examined person. 

4. Additional procedural standards in areas beyond and taking of evidence 

When  asked  whether  they  are  in  favour  of  introduction  additional  procedural  standards  in 
areas beyond taking of evidence, most of stakeholder did not give an opinion. and only 24% 
expressed in favour of this proposal: 

40 Study of MPI Luxembourg, paragraphe 251, p. 119.  

56 

 
 
 
 
 
 
 
                                                            
Yes

No

I do not know

No answer

3% 

24% 

48% 

25% 

However, three national authority participating to the public consultation underlined that the 
harmonisation  or  approximation  of  generally  applicable  national  procedural  legislation  by 
way  of  additional  procedural  standards,  even  if  only  concerning  certain  details,  is  not 
supported. Such harmonisation would obviously interfere with national procedural systems in 
a way that is not justified. Legislation on court proceedings is an integrated whole, which has 
developed  to  its  present  form  over  centuries.  Legal  traditions  in  different  EU-states  differ 
sometimes  considerably  and  changes  to  certain  details  through  harmonisation  would  have 
undesirable  repercussions.  Procedural  details  are  not  self-standing.  Harmonisation  would 
cause  imbalance  and  such  measures  would  not  fulfil  the  principle  of  proportionality.  It  is 
important to maintain a balance between national procedures and international co-operation. 
This  balance  is  successfully  struck  by  legislating  common  EU-instruments  applicable  in 
cross-border situations.   

57 

 
 
 
  
 
 
 
 
 
 
ANNEX 3: WHO IS AFFECTED AND HOW? 

Practical implications of the initiative 

1.1 IMPACT ON PUBLIC AUTHORITIES 

National  authorities  will  have  a  balanced  approach  taking  into  account  the  efficiency  under 
the  Regulation  and  related  costs.  Certainly,  general  awareness-raising  of  courts  implies  the 
necessity to promote such new technologies in the Member States. These costs will depend on 
the  scope,  content,  layout,  means  and  the  target  group  of  such  activities.  Moreover, 
publications  of  the  best  practices  guides  would  also  require  financing  from  national  public 
authorities as well as from the European Commission.  

Consequently,  such  activities  will increase  the demand  of  VC  technologies  and  will  require 
additional  funding.  Moreover,  new  equipment  will  need  special  assistance  for  maintenance 
and its proper operation. Nevertheless, VC technologies can also be efficient at national level 
saving costs for some internal cases. 

Additionally, the establishment of electronic evidences and reducing the usage of paper-based 
communication  would  lead  to  the  creation  of  the  unique  EU-tool  for  electronic  evidence 
system  through  CEF  eDelivery.  Thus,  its  development,  implementation  and  further 
maintenance  would  also  require  funding  from  national  public  authorities.  Furthermore,  the 
personnel  shall  be  trained  sufficiently  in  order  to  be  able  to  operate  these  mechanisms, 
understand the methodology, standards and provide technical support.  

Notwithstanding,  there  are  many  advantages  for  using  both  of  these  electronic  tools  as  the 
need  to  use  postal  service,  paper,  envelopes,  printer  cartridges  and  paper-based  archiving 
materials  will  be  reduced.  According  to  the  level  of  implementation  of  these  new 
technologies, the reduced level will defers. Moreover, there would be no need for labour costs 
dealing  with  communication  and  with 
travel  reimbursement  for  stakeholders. 
the 
Accordingly, it saves time and makes the proceedings more efficient.  

1.2 IMPACT ON LEGAL PROFESSIONALS 

Legal professionals are going to incur costs by understanding the new legislation in order to 
analyse  the  most  appropriate  mean  to  take  evidence.  Therefore,  lawyers  will  not  be  able  to 
spend  time  on  other  cases  facing  financial  losses.  However,  some  costs  are  expected  to  be 
forwarded  to  clients.  The  judges  would  also  need  time  to  get  familiar  with  new  rules. 
Nevertheless, for both groups, when they managing cases under the Regulation frequently, the 
proceedings are expected to become more efficient and less time consuming.  

58 

 
 
 
 
 
 
Additionally, legal persons are going to have some administrative burden for the organisation 
of VC and other distance communication methods. Thus, such necessities would also require 
time for understanding the mechanisms and its performance.   

As  a  consequence,  legal  persons  will  benefit  from  increasing  legal  certainty  as  they  will 
obtain the needed knowledge of when and how the Regulation applies. Such factor positively 
implies on the court proceedings in general. Moreover, electronic systems allow gaining extra 
time for legal professionals, which could be used for other cases.  

1.3 IMPACT ON JUDICIAL SYSTEM  

The overall clarification in the legal text of the nature of the Regulation and situations when it 
shall  apply  would  definitely  benefit  the  system  as  such.  It  allows  reducing  delays  in  court 
proceedings  and  increasing  legal  certainty.  Furthermore,  replacing  the  category  of  "courts" 
with  "judicial  authorities"  and  establishing  definition  of  such  authorities  will  harmonise 
national  legislation  and  it  will  improve  cross-border  communication  and  a  link  between 
notions in different Member States. 

Specifically,  baseline  scenario  to  the  Regulation,  would  not  have  a  high  impact  as  paper-
based  approach  will  remain  the  main  way  of  communication,  VC  equipment  would  not  be 
located in all judicial authorities. Therefore, cross-border cases are expected to be slower and 
exceed  the  90  days  period  mentioned  in  the  Regulation.  Nevertheless,  general  awareness-
raising of courts would emphasize on the importance of using modern technologies, f.i. video-
conferencing,  in  cross-border  cases.  Thus,  such  process  will  have  a  positive  effect  on 
demanding new mechanisms and/or increase the frequency of its usage.  

Nevertheless, the implementation of policy package implies co-financing from the European 
Commission in order to provide all necessary changes for establishing CEF eDevilery and VC 
equipment.  Consequently,  it  will  decrease  labour  costs  as  more  legal  proceedings  could  be 
handled by the same staff within the given time. Additionally, the uniform system of taking of 
evidence would enable harmonisation in this field. 

1.4 IMPACT ON BUSINESS AS SERVICE PROVIDERS 

Different  businesses  are  going  to  get  diverse  consequences  on  the  application  of  the 
Regulation. Some traditional means of communication are going to be used less frequently in 
the future. Therefore, the targeted providers will get primarily negative impacts. In particular, 
postal  service  providers  are  expected  to  have  less  income  due  to  the  number  of  evidences 
taken  using  electronic  means  of  communication.  Additionally,  paper  and  office  supply 
providers  will  reduce  the  number  items  provided  for  day-to-day  paper-based  approach. 
Furthermore,  transport  service  providers  will  suffer  from  the  reduced  quantity  of  customers 
on cross-border travels with long distance busses, trains and aircrafts.  

59 

 
 
 
 
 
Meanwhile, some  businesses  would benefit  from  the  implementation  of  the  policy  package. 
First of all, providers of IT consulting services could gain profit of around 1 million Euros for 
implementation  of  CEF  eDelivery  system  whereas  manufactures  of  VC  and  other  distance 
communication  equipment  would  gain  advantages  of  promoting  such  direct  mean  to  take 
evidence among Member States. Consequently, such judicial authorities, which will establish 
new  technologies,  would  also  require  services  of  internet  and  telecommunication  providers, 
cloud storage service providers and archiving service providers. All these different businesses 
would get a possibility to gain income under the Regulation. Furthermore, the maintenance of 
these  new  technologies  will  also  require  assistance  from  businesses  in  order  to  operate  the 
system and provide all necessary maintenance supply.  

1.5 IMPACT FOR CITIZENS AND BUSINESS (STAKEHOLDERS) 

Overall  citizens  and  business  as  parties  of  legal  proceedings  will  get  a  positive  impact. 
Replacing the category of "courts" with "judicial authorities" and establishing the definition of 
such  authorities  will  broaden  the  scope  of  the  regulation,  which  will  allow  citizens  to  use 
Regulation  for  more  diverse  cases.  Moreover,  the  same  consequence  shall  apply  due  to  the 
changes  in  the  notion  of  "taking  of  evidence"  by  adding  "and  other  judicial  acts". 
Additionally,  the  broaden  scope  increases  access  to  justice  and  offers  a  freedom  of  choice 
concerning  the  most  appropriate  means  to  take  evidence  across  borders.  Nevertheless,  such 
changes may  create misunderstandings for citizens  and business in  order to clearly estimate 
the scope of these notions.  

The establishment of electronic means for taking of evidence and reducing the usage of paper-
based communication would save time and costs for ordinary citizens. Generally, VC would 
allow  decreasing  legal  fees  for  lawyers,  make  the  legal  proceeding  more  efficient  and  less 
stressful.  Furthermore,  different  means  of  distance  communication  are  especially  important 
for  certain  categories  of  persons,  such  as  eldery,  children,  persons  with  physical  or  mental 
disabilities or anxiety disorders, persons who suffered physical or psychological damage, etc. 
They will be able to avoid less convenient means of communication by providing evidences 
using digitalise systems.   

1.6 IMPACT ON ENVIRONMENT 

The  positive  environment  impact  will  be  gained  even  under  the  baseline  scenario.  The 
necessity to use paper-based means of communication and obtain cross-border evidences by 
traveling to another county will be reduced.  

Modern electronic communication would lead to the savings by reducing the costs of paper, 
toner or ink. Moreover, it will not require additional materials, such as envelops in the post 
office, fuel for transportation. Consequently, less gas emission will be produced by deliveries. 
Furthermore,  the  policy  package  imposes  the  creation  of  the  CEF  eDelivery  portal,  which 

60 

 
 
 
 
 
would become a wide EU-tool among the Member States. Such option impacts on the usage 
of  toner  or  ink  and  creation  of  non-renewable  resources  (diminish  the  necessity  to  create 
special  booklets  for  guidance  on  how  to  fill  in  special  forms).Additionally,  stakeholders 
mention  that  reprinted  and  duplicated  prints  often  happens.  Thus,  the  probability  to  waste 
such resources is reduced.  

Concerning cross-border evidences, The Regulation provides with the possibility to summon 
a person directly on the trial41.  Such factor saves costs on the postal deliveries. Moreover, 
the promotion of videoconferencing and other means of distance communication for the direct 
taking of evidence would mainly reduce the need to have a cross-border travel. Therefore, it 
decreases unnecessary pollution and gas emission of the transport.  

41 C-170/11 Lippens and others 

61 

 
 
 
                                                            
I. Overview of Benefits (total for all provisions) – Preferred Option 

Description 

Amount 

Comments 

Direct benefits 

Eliminate unnecessary costs for 
taking evidence 

The preferred package of options will very much 
decrease the number of cases in which the 
Regulation is not applied. 

Making  mandatory  the  application  of  Taking  of  Evidence 
Regulation will reduce obstacles to an efficient overall system 
of cross-border taking of evidence in the EU.  

The public consultation indicated that only 50% 
of  the  cases  where  the  evidence  was  taking 
abroad.  

CJEU  rulings  have  created  some  legal  uncertainty  and  may  in 
certain  cases  lead  to  undesirable  results.  For  instance,  cases 
have been reported by citizens who wished or were requested to 
appear as a witness in proceedings pending in another Member 
State  and  where  the  court  seized  required  their  physical 
presence  before  the  court  despite  the  explicit  request  of  the 
citizens to be heard by distance means of communication (e.g. 
videoconferencing). 

This will also contribute to legal certainty for public authorities, 
legal  professionals,  citizens,  and  businesses  and  would  reduce 
current unnecessary costs.  

62 

 
 
 
 
 
 
 
 
 
Making the use of videoconferencing mandatory 
if  a  person  needs  to  be  heard  from  another 
Member State will reduce the number of cases in 
which national courts in cross-border cases avoid 
resorting  to the Regulation and instead summon 
to  the  court  the  witness  or  other  person  to  be 
heard directly. 

Using videoconferencing in a cross-border case will reduce 
travel time and costs including increased risks from long trips, 
meeting time and costs, revenue loss during the working time, 
lawyer cost if the person wishes to be accompanied. 

Most  national  courts  in  cross-border  cases  still 
avoid  resorting  to  the  Regulation  and  summon 
the  witness  or  other  person  to  be  heard  directly 
to the court. This predilection is caused not only 
by the sometimes difficult practical coordination 
involved,  but  also  by 
between 
concerns  about  the  preservation  of  the  principle 
of immediacy in the assessment of the evidence. 

the  courts 

In  reply  to  the  Public  consultation,  44  %  of  the 
stakeholders emphasised that the option of using 
videoconferencing  as  part  of  the  direct  channel 

63 

 
 
 
 
 
 
 
 
 
of taking evidence is appealing. 

By accepting electronic (digital) evidence 
produced stored in another Member State 

By making e-Codex mandatory tool 

By replacing the notion 'taking of evidence' 
(Article 1) with 'other judicial acts' 

By introducing a new definition of ‘courts’, other  

authorities should be able to benefit from the 
Regulation on taking of evidence. 

64 

The introduction of a tool for electronic communications and 
the recognition of digital as well as the encouragement of 
videoconferencing are in line with and support the current 
strategies of the EU Commission in the context of the Digital 
agenda and the e-justice strategy. 

This solution would ensure a safe electronic communication 
and exchange of documents between the users of the system, 
and it would provide for automatic recording of all steps of the 
workflow, as well as would ensure the genuine identity of the 
participants. 

The broadened scope increases access to justice and offers a 
freedom of choice concerning the most appropriate means to 
take evidence across borders. 

Replacing  the  category  of  "courts"  with  "judicial  authorities" 
and  establishing  definition  of  such  authorities  will  harmonise 
improve  cross-border 
national 
communication and a link between notions in different Member 
States. 

legislation  and 

it  will 

 
 
 
 
 
 
By defining other means of cross-border taking 
of evidence 

This will reduce diverging interpretations as to what is 
considered "taking of evidence" within the meaning of the 
Regulation.  

An autonomous European meaning to the concept of "taking of 
evidence" will enhance the effectiveness of the Regulation.   

65 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
ANNEX 4: ANALYTICAL METHODS 

In order to estimate the quantitative aspects of current and future application of the Regulation 
(EC) 1206/2001, it is necessary to have an overview on the number of legal proceedings in 
which it was applied, as well as on the use of different channels for taking evidence under 
the  Regulation.  For  this  purpose,  a  model  has  been  prepared  by  Deloitte  which  includes 
calculations and projections on these aspects. The model is based on primary and secondary 
data, which have been combined in order to build robust estimates on the application of the 
Regulation.  

BRIEF DESCRIPTION OF THE MODEL  

The main purpose of the model is to estimate the number of legal proceedings in which the 
Regulation (EC) 1206/2001 is applied or will be applied in the future, both under the baseline 
scenario  and  the  policy  package.  In  addition,  it  serves  to  estimate  the  share  of  the  different 
channels under the Regulation.  

Primary  data  (i.e.  statistics)  concerning  the  number  of  legal  proceedings  in  which  the 
Regulation  (EC)  1206/2001  has  been  applied  is  not  readily  available.  Therefore,  estimates 
have been made based on secondary information available for the timeframe 2000-2017, as 
well as expert assumptions, which feed into the model. These concern the following types of 
legal proceedings: 

Insolvencies, e.g. relevant in relation to B2B or B2C claims; 

  Divorces, legal separations, and parental responsibility proceedings; 
 
  Successions and wills; 
  Property transactions, e.g. immovable property in B2B, B2C, and C2C constellations; 
  Contractual obligations, e.g. liability in B2B or B2C contracts; 
  Administrative cases, e.g. concerning disputes between citizens and authorities; and 
  Compensation  for  damages,  e.g.  subsequent  to  criminal  cases  or  as  part  of  liability 

proceedings. 

Both a bottom-up and a top-down approach have been used to estimate the respective data. 
In  this  case,  a  bottom-up  approach  means  that  the  estimates  are  largely  based  on  available 
Eurostat  data  or  data  from  national  statistical  offices,  as  well  as  qualitative  /  quantitative 
information available in secondary sources. The number of legal proceedings was estimated 
based  on  this  data  and  respective  assumptions.  In  contrast,  the  top-down  approach  uses 
quantitative information available through the CEPEJ database on the overall number of legal 
proceedings  and  attributes  the  individual  case  load  to  specific  types  of  legal  proceedings 
based on assumptions. 

The  following  table  indicates  the  main  data  source  for  the  estimates,  as  well  as  the  type  of 
approach used per type of legal proceeding. 

66 

 
 
 
Table 1: Types of legal proceedings, respective data sources, and approach used 

Type of legal proceeding  Source for estimate 

Approach used 
for estimate 

Bottom-
up 

Top-
down 

Divorces, legal 
separations, and 
parental responsibility  

  Eurostat, e.g. concerning the overall 

X 

number of divorces 

  Brussels IIa Impact Assessment42, e.g. 
concerning the number of cross-border 
divorces and legal separations between 
2008 and 2012 

Insolvencies 

  Eurostat, e.g. concerning the number of 

X 

businesses in the EU 

  Insolvency Impact Assessment43, e.g. 
concerning the share of insolvencies 
with cross-border elements 

Successions and wills 

  Eurostat, e.g. concerning the number of 

X 

Property transactions 

deaths 

  Successions & Wills Impact 

Assessment44, e.g. concerning the share 
of deaths with an "international 
component" 

  CEPEJ data45 on the caseload of 
Member States’ courts in 2014 
concerning land register cases 

  Eurostat data concerning the population 

in EU Member States 

Contractual obligations 

  CEPEJ data on the caseload of Member 

States’ courts in 2014 concerning 
litigious & non-litigious civil & 
commercial cases  

  Eurostat data concerning the population 

in EU Member States 

Administrative cases 

  CEPEJ data on the caseload of Member 

States’ courts in 2014 concerning 

X 

X 

X 

42 See: Study on the assessment of Regulation (EC) No 2201/2003 and the policy options for its amendment. See: 

http://edz.bib.uni-mannheim.de/daten/edz-k/gdj/15/bxl_iia_final_report_analtical_annexes.pdf  

43 SWD(2012) 416 final. Impact Assessment accompanying the document “Revision of Regulation (EC) No 1346/2000 on 

insolvency proceedings”. See: http://insreg.mpi.lu/Impact%20assessment.pdf  

44 SEC(2009) 410 final. Impact Assessment accompanying the Proposal for a Regulation on jurisdiction, applicable law, 

recognition and enforcement of decisions and authentic instruments in matters of successions and on the introduction of 
a European Certificate of Inheritance. See: http://eur-lex.europa.eu/legal-
content/EN/TXT/PDF/?uri=CELEX:52009SC0410&from=EN  

45 Council of Europe (2016): Evaluation of European Judicial Systems. Dynamic data set concerning civil and commercial 

matters. See: https://public.tableau.com/views/2010-2012-
2014Data/Tables?:embed=y&:display_count=yes&:toolbar=no&:showVizHome=no  

67 

 
 
 
 
 
 
 
 
 
                                                            
Type of legal proceeding  Source for estimate 

administrative cases 

  Eurostat data concerning the population 

in EU Member States 

  CEPEJ data on the total caseload of 
Member States’ courts in 2014 

Compensation for 
damages 

Source: Deloitte 

Approach used 
for estimate 

Bottom-
up 

Top-
down 

X 

In addition to the sources identified above, the estimates draw on expert assumptions, e.g. in 
relation  to  the  share  of  legal  proceedings  that  relate  to  cross-border  cases,  or  qualitative 
information gathered as part of  the interviews, e.g. approximate share of cases in which the 
Regulation  (EC)  1206/2001  was  applied.  A  detailed  description  on  the  assumptions  is 
provided in the next section Underlying assumptions and data input. 

The assumptions  were  inserted in  a  complex  Excel  model developed by Deloitte in  which 
different types of data from various sources have been linked and extrapolated. The following 
graph  visualises  the  high-level  approach  used  for  the  development  of  the  estimates  and 
indicates  illustrative  types  of  data,  the  level  of  detail  at  which  they  are  available,  the 
respective sources, as well as specific examples of indicators that have been used. 

68 

 
 
 
 
Figure 1: High-level approach used to develop the estimates 

Source: Deloitte 

The assumptions were subject to an internal, in-depth peer review process. As part of this 
process,  different  assumptions  were  introduced  in  the  model  to  compare  the  different 
outcomes.  The  result  of  this  sensitivity  analysis  was  that  the  assumptions  provided  in  the 
table  below  seem  to  be,  at  this  stage,  the  most  reasonable  and  pragmatic  based  on  the  best 
data available in relation to this specific subject. 

UNDERLYING ASSUMPTIONS AND DATA INPUT 

a)  Baseline and key assumptions 

As  previously  explained,  the  model  works  with  different  assumptions  indicated  in  the  table 
below. 

Table 2: Key assumption used in the model 

Type of estimate 

Assum

Sources 

69 

 
 
 
p-tion 

Commis
-sion 

Intervie
ws 

Expert 
assump-
tion 

Other 

X 

X 

X 

X 

X 

X 

X 

Basic statistical estimates 

Share of divorces accompanied by a 
parental responsibility proceeding  

Additional parental responsibility 
proceedings per divorce  

Share of businesses that go insolvent  

Share of cross-border insolvencies  

Average number of legal proceedings per 
insolvency  

Share of cross-border cases of 
all incoming cases 

Minimu
m 

Maximu
m 

Speed of growth of "cross-border CAGR"  

Share of deaths with an 
"international component" 

Minimu
m 

Maximu
m 

25% 

25% 

1% 

25% 

1.0 

4% 

15% 

1.5 

1% 

25% 

X 

X 

X 

X 

X 

X 

Average 

13% 

Share of "international deaths" for which a 
will is available and can be contested in 
court  

60.4% 

X 

Share of property transactions with 
"international component"  

1% 

Share of contractual obligations with an 
"international component"  

9.3% 

X 

Taking of evidence 

Shares of cases 

Share of cases in which VC is 
used 

Share of cases in which direct 
ToE was performed 

Minimu
m 

Maximu
m 

Average 

Minimu
m 

Typical 

Maximu
m 

Average 

10% 

40% 

25% 

5% 

20% 

80% 

35% 

70 

X 

X 

X 

 
 
 
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
Sources 

Assum
p-tion 

Commis
-sion 

Intervie
ws 

Expert 
assump-
tion 

Other 

Minimu
m 

Maximu
m 

Average 

2 

12 

7 

80% 

90,000 
€  

270 € 

500 € 

1,000 
€ 

Minimu
m 

Maximu
m 

Average 

750 €  

X 

X 

X 

X 

Type of estimate 

Delays 

Number of months it takes to 
take evidence across borders 

Costs 

Share of paper based 
communication 

Cost of VC equipment 

Transcript of recording 

Translation costs 

Source: Deloitte 

b)  Key sources 

The  assumptions  were  built  on  the  data  gathered  during  the  interviews  with  practitioners 
both at EU and national level carried out as part of this study,  desk research as well as the 
expertise of the Deloitte study team and the external legal expert. 

c)  Construction of the baseline and core policy simulations 

Based  on  the  assumptions  and  key  sources  previously  explained,  the  number  of  legal 
proceedings  in  which  the  Regulation  was  and  was  not  (but  could  have  been)  applied  was 
estimated for the period 2000-2017 (i.e. the baseline). 

In  addition  to  the  construction  of  the  baseline,  the  Deloitte  study  team  has  developed  the 
quantitative estimates in terms of the number of legal proceedings in which the Regulation is 
expected to be applied between 2017 and 2030, as well as the use of different channels under 
the Regulation.  

The projections are based on the same data and assumptions than for the baseline. A growth 
model has been developed based on which the expected development of the estimates in the 
future  is  projected.  The  model  used  in  this  study  is  based  on  the  S-curve  concept  which  is 
widely applied in macro-economic modelling. The concept is visualised below. 

71 

 
 
 
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
 
Table 3: Illustrative S-curve development of the number of legal proceedings in which the 
Regulation was applied 

Source: Deloitte 

Within  this  concept,  the  growth  of  a  certain  set  of  data  over  time,  e.g.  the  number  of  legal 
proceedings in which the Regulation (EC) 1206/2001 was applied, increases over time up to a 
point  at  which  the  growth  rate  eventually  declines  and  the  data  only  grows  marginally  (the 
curve “flattens out”). 

Such  a  curve  can  be  modelled  with  a  logistic  function.  The  general  formula  used  for  the 
logistic function is the following. 

𝑃(𝑡) =  

𝑃0 ∗   𝑒𝑟−𝑡 
1 +   𝑃0(𝑒𝑟−𝑡 − 1)/𝑃𝑀𝐴𝑋

The formula contains the following elements: 

  P represents the data point at a given time t; 
  P0 represents the data point today; 
  PMAX represents the data point that can reasonably be achieved until 2030; and 
  r  represents  the  parameter  by  means  of  which  the  data  point  is  expected  to  increase 

annually; and 

  e is the mathematical that is the base for the natural logarithm (‘Euler’s number’). 

The curve can be modelled in such a way that it does, however, not resemble the S-curve in a 
given period of time, e.g. by mathematically stretching its development over a timeframe that 
exceeds the scope of this study (i.e. the flat  part of the curve will not be reached by 2030). 
This has been used within this study as it can reasonably be expected that societal trends and 
increasing  judicial cooperation will remain over the next  twelve years until  2030. Thus, the 

72 

 
 
 
 
 
graphs  depicted  in  this  section  do  not  encompass  the  typical  “flattening  out”  part  of  the  S-
curve. 

This has been the basis for  estimates on the application of the revised Regulation under 
the selected policy package. The values applied to the baseline scenario have been used as 
the start value for the modelling of the application of the revised Regulation. It was assumed 
that there would not be any significant changes in the first two years at least, as the legislative 
changes would first need to be adopted and implemented.  

For  the  time  after  that,  the  assumptions  concerning  the  speed  of  growth  have  been  adjusted 
based  on  the  qualitative  assessment  of  the  selected  policy  options.  For  every  aspect  of  the 
policy option, it was assessed how and to what extent it would impact on the number of cases 
in which the Regulation (or specific channels) have been applied, based on expert judgment. 

Overall,  it  was  assumed  that  the  application  of  the  Regulation  would  increase  based  on  the 
envisaged  policy  changes.  Again,  it  was  assumed  that  the  development  would  be  S-curve 
shaped.  

Assumptions  have  been  made  for  the  overall  application  of  the  revised  Regulation  in  the 
future as well as the application of individual channels, as follows: 

  Overall application of the revised Regulation (including the new channels added): 

67.5 – 90% of all cross-border cases in civil and commercial matters; 

  Application  of  the  channels  that  exist  currently  under  the  Regulation  (Art.  10ff 
and Art. 17): 15 – 20% of all cross-border cases in civil and commercial matters; 
  Application of direct Taking of Evidence under Art. 17 of the Regulation: up to 

40% of all cases in which the Regulation is applied;  

  Use of videoconferencing under Art. 17: up to 70% of all cases in which Article 17 

of the Regulation is applied.  

The estimates in the graphs provided should not be read as concrete projections but rather as 
‘corridors of estimates’ in which the ‘actual’ concrete number of legal proceedings is likely to 
be. 

d)  Sensitivity  of  model  results  and  likely  robustness  to  changes  in  the  underlying 

assumptions and/or data input 

As previously explained, as part of the in-depth peer review of the model, assumptions were 
introduced to compare the different outcomes. These assumptions were based on the expertise 
and  judgement  of  the  Deloitte  study  team.  In  addition,  the  estimations  were  provided  in 
corridors in the graphs in order to take into account possible variations that might occur. 

73 

 
 
 
 
ANNEX 5: TABLES WITH ASSESSMENT OF OPTIONS FOR PROBLEMS 

Assessment of options for problem 1 “Uncertainty when the Regulation shall be used or other means in national or European law may be used” 

Problem 1: Uncertainty when the Regulation shall be used or other means in national or European law may be used 

Option 

Effectiveness 

for 

practice 
1.1.  Best 
legal 
guide 
the 
professionals  on 
parallel  use  of 
the 
various  channels  of 
obtaining  information 
or  evidence  in  cross-
for 
border 
example 
be 
distributed  via  the  e-
Justice Portal 

cases, 
to 

legal 
increase  of 
Small 
certainty 
resulting 
and 
reduction  of  delays  and 
costs 
public 
for 
administrations,  businesses 
and  citizens  to  a  small 
degree  dependent  on  the 
uptake  of 
the  practice 
guide. 

It  is  questionable  to  what 
extent  legal  professionals 
(in particular those who do 
regularly  work  on 
not 
cross-border 
are 
aware  of  and  use  such  a 
practice guide.  

cases) 

Efficiency 

Medium.  

but 

positive 
Limited 
impacts in achieving the 
objectives 
also 
rather  low  costs.  The 
be 
could 
guidance 
developed  within 
the 
existing  structure  of  the 
EJN network.  

Visualisation, 
layout 
etc. of the practice guide 
could  be  done  at  a  cost 
of  between  15,000  and 
30,000 Euro.   

The  guide  could  be 
mainly  distributed  via 
the e-justice portal at no 
additional costs  

Printed  material,  e.g. 
flyers,  brochures  etc. 
training 
(e.g. 

for 

74 

Proportionality 

Rating  Conclusion 

No  binding  effect,  easy 
development 
and 
low 
distribution  at  very 
costs. However, this option 
would address the problem 
limited 
only 
extent. 

to  a  very 

+1 

Small positive impact at 
low costs. 

Limited 
positive 
benefits  in  relation  to 
the 
of 
objectives 
increased legal certainty 
and  in  reducing  delays 
and 
for 
costs 
stakeholders . The exact 
extent  of  the  benefits 
would  be  dependent  on 
the 
the 
information  in  the  new 
practice guide. 

uptake 

of 

The  costs  for  procuring 
this 
the  drafting  of 
practice  guide  would 
between 
likely 
15,000 
30,000 
Euro.  

be 
and 

The 
proportionate, 

option 

is 
but 

 
 
 
 
Problem 1: Uncertainty when the Regulation shall be used or other means in national or European law may be used 

Option 

Effectiveness 

law, 

1.2  (a)  Clarifying  the 
relationship  of 
the 
Regulation  with  other 
instruments,  including 
national 
by 
stating  explicitly  that 
other  means  to  take 
evidence  may  be  used 
(following  the  CJEU) 
providing 
and 
examples  (summoning 
of experts etc.) 

+ 

1.2  (b)  Clarifying  in  a 
provision 
the 
subsidiary  nature  of 
to 
the  Regulation 
further  means  in  other 
EU  instruments  where 

This option would increase 
legal  certainty  and  reduce 
delays and costs for public 
administrations,  businesses 
and  citizens  to  a  medium 
degree.  

the 

However, 
effects 
would  be  limited  by  the 
fact  that  the  option  merely 
codifies  existing  case  law 
(point a) or legal principles 
(point  b),  which  normally 
should already be followed 
and  thus  be  part  of  the 
baseline 
scenario. 
Nevertheless, clarity would 
be  enhanced  by  including 
these aspects directly in the 
there 
Regulation.  Thus, 

Efficiency 
sessions or as take-away 
at  conferences),  costs 
would range from 1 to 5 
Euro  per  print.If  one 
guide  was 
practice 
printed  per  court  (i.e. 
6,000  in  the  EU),  this 
would  amount  to  max. 
30,000 Euro. 

The  efficiency  of  this 
option 
be 
medium.  

would 

rather 

impacts 

While  the  option  would 
limited 
have 
some 
in 
positive 
achieving 
the 
objectives,  the  costs  for 
this  option  would  also 
low.  They 
be 
would  be  limited  to  the 
the  new 
drafting  of 
and 
text 
legislative 
/ 
raising 
awareness 
legal 
training 
of 
professionals  on 
the 
amendment. 

At  the  same  time,  legal 
(e.g. 
professionals 

75 

Proportionality 

Rating  Conclusion 

would  not  fully  address 
the problem at hand. 

The 
proportionate.  

option 

is 

+2 

option 

codifies 
The 
existing case law and legal 
principles  and  thus  does 
not  go  beyond  what  is 
necessary  and  this  type  of 
action could not be taken at 
the Member State level. 

The  option  would  have 
a  medium 
positive 
impact at low costs. 

to 

Some  limited  positive 
benefits are expected in 
the 
relation 
objectives  of  increased 
legal  certainty  and  in 
reducing  delays  and 
costs  for  stakeholders 
involved in the cases as 
part  of  which  evidence 
is  taken  across  borders. 
Low  costs  would  be 
incurred  in  relation  to 
drafting the amendment 
and  awareness  raising  / 
legal 
training 
the 
professionals  on 

of 

 
 
 
Problem 1: Uncertainty when the Regulation shall be used or other means in national or European law may be used 

Proportionality 

Rating  Conclusion 
amendment.  

The 
proportionate. 

option 

is 

need 

Efficiency 
lawyers  and  court  staff) 
to 
would 
themselves 
familiarise 
with 
rules. 
the  new 
These  costs  are  not 
expected 
be 
significant  and  would 
not  be  passed  on  to 
citizens  /  businesses,  as 
every  legal  professional 
would  only  spend  little 
time  (e.g.  half  an  hour) 
once.  

to 

costs 
are, 
Such 
however, 
regarded  as 
out-of-pocket  costs  or 
business  as  usual  and 
not  as  additional  costs 
the 
to 
compared 
baseline scenario. 

Option 
the  scopes  of 
means overlap. 

these 

the 

case 

Effectiveness 
would 
time  savings  for 
legal  professionals  who 
might  otherwise  need  to 
law, 
check 
into 
possibly 
translating 
slightly 
lower  costs  for 
legal  advice  for  citizens 
and businesses. In addition, 
an  increasing  number  of 
legal  professionals  may 
become  aware  of 
this 
relationship. 

Thus, there would be fewer 
instances in which it is not 
clear  whether  or  not  the 
Regulation  may  or  should 
be  applied.  On  this  basis, 
there  would  be  a  higher 
share  of  cases  in  which  an 
informed  decision  about 
the  method 
for  cross-
border  taking  of  evidence 
is  taken.  On  this  basis,  it 
can  be  expected  that  the 
most  efficient  methods  are 
chosen in a higher share of 
cases. 

1.3 (a) Defining other  This option would increase  The  efficiency  of  this  The 

option 

is  +3 

The  option  would  have 

76 

 
 
 
Problem 1: Uncertainty when the Regulation shall be used or other means in national or European law may be used 

of 
taking 
in 

Option 
cross-
means 
of 
border 
the 
evidence 
in 
Regulation 
the 
addition 
two  ways: 
existing 
acknowledging 
the 
ways  supported  by 
as 
CJEU 
the 
legitimate 
means 
under the Reg.: 

to 

A 

Direct 
(i) 
examination  of  facts 
in  MS  B  by  experts 
appointed  by  courts 
in 
in  MS 
accordance  with  the 
procedural  rules  of 
MS  A,  insofar  that 
this  activity  does  not 
affect  the  sovereign 
powers of MS B > see 
C-332/11 ProRail 

Summoning 
(ii) 
foreign 
persons 
directly  to  the  trial 
court  (but  whenever 
possible,  VC  should 

Effectiveness 
legal  certainty  and  reduce 
delays and costs for public 
administrations,  businesses 
and  citizens  to  a  medium 
degree.  

codifies 
The 
option 
existing  case 
law  and 
specifically  acknowledges 
additional  ways  of  taking 
evidence,  also  specifying 
how  or  under  which  law 
to  be 
such  ways  are 
executed.  

should 
With 
scope, 

Thus, there would be fewer 
instances in which it is not 
clear  whether  or  not  the 
be 
Regulation 
applied. 
the 
the 
broadened 
Regulation would likely be 
applied in a higher number 
of  cases,  which  may  also 
help to increase knowledge 
about 
and  possibly 
increase  the  awareness  of 
legal  professionals  about 
alternative methods.  

it 

Clarity would be enhanced 

Efficiency 
option would be high.  

Proportionality 
proportionate.  

rather 

While  the  option  would 
have  medium  positive 
impacts in achieving the 
objectives,  the  costs  for 
this  option  would  also 
be 
low.  They 
would  be  limited  to  the 
the  new 
drafting  of 
and 
text 
legislative 
awareness 
/ 
raising 
legal 
of 
training 
professionals  on 
the 
amendment. 

codifies 
The 
option 
existing  case 
law  and 
includes  methods  for  the 
taking  of  evidence  in  the 
Regulation,  which 
are 
currently  already  used.  It 
thus  does  not  go  beyond 
what  is  necessary  and  this 
type of action could not be 
taken  at  the  Member  State 
level. 

need 

At  the  same  time,  legal 
professionals 
(e.g. 
lawyers  and  court  staff) 
to 
would 
themselves 
familiarise 
with 
rules. 
the  new 
These  costs  are  not 
expected 
be 
significant  and  would 
not  be  passed  on  to 
citizens  /  businesses,  as 
every  legal  professional 
would  only  spend  little 
time  (e.g.  half  an  hour) 

to 

77 

Rating  Conclusion 
a  medium 
impact at low costs. 

positive 

to 

Some  medium  positive 
benefits are expected in 
the 
relation 
objectives  of  increased 
legal  certainty  and  in 
reducing  delays  and 
costs  for  stakeholders 
involved in the cases as 
part  of  which  evidence 
is  taken  across  borders. 
Low  costs  would  be 
incurred  in  relation  to 
drafting the amendment 
and  awareness  raising  / 
legal 
training 
professionals  on 
the 
amendment.  

of 

The 
proportionate. 

option 

is 

 
 
 
Problem 1: Uncertainty when the Regulation shall be used or other means in national or European law may be used 

Option 
have  priority)  >  see 
Lippens 
C-170/11 
and others 

+ 

1.3 (b) Regulating the 
taking  of  evidence 
through  diplomatic 
officer  or  consular 
agent  as  a  specific 
way  of 
taking  of 
evidence  under  the 
line  with 
Reg., 
relevant  provision  of 
the 
1970  Hague 
Convention 

in 

Proportionality 

Rating  Conclusion 

Effectiveness 
by  including  these  aspects 
directly  in  the  Regulation. 
time 
there  would 
Thus, 
savings 
legal 
for 
professionals  who  might 
otherwise  need  to  check 
the  case  law  and  increased 
legal  certainty  for  citizens 
and businesses.  

Efficiency 
once.  

Such  costs  are  regarded 
as out-of-pocket costs or 
business  as  usual  and 
not  as  additional  costs 
compared 
the 
to 
baseline scenario. 

It  would  be  even  more 
useful, if it was specifically 
stated  in  the  Regulation 
that  other  methods,  e.g. 
law, 
based  on  national 
could  be  used 
they 
if 
would  be  more  efficient 
than 
the 
Regulation.  This  would 
add  clarity  and  make  sure 
that  courts  can  always  use 
the  methods  most  suitable 
to the case.  

those 

in 

Nevertheless,  the  positive 
effects  would  depend  on 
the  extent  to  which  the 
actually 
Regulation 
known  and  used  by  legal 
professionals.  

is 

78 

 
 
 
Problem 1: Uncertainty when the Regulation shall be used or other means in national or European law may be used 

Option 

Effectiveness 

Efficiency 

Proportionality 

Rating  Conclusion 

Preferred option 

The preferred option is 1.3. This option would add most clarity and thus it would also reduce costs and delays to the 
highest degree. There are low costs associated with the implementation of the option (related to the drafting of the new 
legislative  text  and  raising  awareness  of  /  training  legal  professionals  on  the  amendment)  and  it  is  proportionate.  It 
would be even more useful, if it was specifically stated in the Regulation that other methods, e.g. based on national law, 
could be used if they would be more efficient than those in the Regulation. This would add clarity and make sure that 
courts can always use the methods most suitable to the case.  

In addition, it would be useful to combine this with awareness raising, a new guidance document (cf. option 1.1) and/or 
an update of the existing EJN Practice Guide. 

79 

 
 
 
 
1.1.1  Options addressing the diverging interpretation of “courts” under the Regulation by the national authorities 

Assessment of options for problem 2 “Diverging interpretation of “courts” under the Regulation by the national authorities” 

Problem 2: Diverging interpretation of “courts” under the Regulation by the national authorities 

Option  

Effectiveness 

Efficiency 

Proportionality 

Rating  Conclusion 

2.1  Upgrading  the 
2006  EJN  Practice 
include 
Guide 
to 
the 
guidance 
on 
of 
interpretation 
“courts” 

This  option  would  increase 
legal  certainty  and  reduce 
delays  and  costs  for  public 
administrations,  businesses 
to  a  small 
and  citizens 
degree.  The  exact  extent  of 
the  benefits  would  be 
dependent  on  the  uptake  of 
the  information  in  the  EJN 
practice guide. 

fewer 
There  would  be 
instances  in  which  it  is  not 
clear  whether  or  not  the 
Regulation  may  be  applied. 
Thus, there would  be  fewer 
exchanges  between  courts  / 
other  authorities  to  clarify 
the 
whether 
or 
/ 
requesting 
institution 
is  actually  a 
court  under  the  Regulation. 
In  turn,  this  is  expected  to 
reduce  the  overall  time  of 
the  proceedings  to  a  small 

not 
authority 

The  efficiency  of  this 
option 
be 
medium.  

would 

impacts 

While  the  option  would 
limited 
have 
some 
in 
positive 
achieving 
the 
objectives,  the  costs  for 
this  option  would  also 
be  rather  low.  It  would 
be necessary to come to 
an  agreement  on  how 
the  guidance  should  be 
phrased.  This  could,  for 
example, be done within 
the 
network, 
possibly  in  the  context 
of existing meetings. 

EJN 

Efforts  are  likely  to  be 
limited, as examples can 
be found in existing EU 
the 
instruments 
Maintenance 
Regulation) and the EJN 

(e.g. 

80 

The 
proportionate.  

option 

is 

+1 

The  option  does  not  have 
any  binding  effect  and  the 
information  would 
be 
included 
in  a  document 
that  already  exists.  Hence, 
the  option  does  not  go 
beyond  what  is  necessary 
to address the problem and 
the  type  of  action  is  as 
simple 
possible. 
as 
Furthermore,  this  type  of 
action  could  not  be  taken 
individual  Member 
by 
States.  Finally,  the  costs 
are minimal. This said, the 
option  would  not 
fully 
address the problem. 

The  option  would  have 
a  small  positive  impact 
at low costs. 

to 

Some  limited  positive 
benefits are expected in 
relation 
the 
objectives  of  increased 
legal  certainty  and  in 
reducing  delays  and 
costs  for  stakeholders 
involved in the cases as 
part  of  which  evidence 
is  taken  across  borders. 
The  exact  extent  of  the 
be 
benefits  would 
the 
dependent 
on 
uptake 
the 
information  in  the  EJN 
practice guide. 

of 

The  costs  for  procuring 
an  update  of  the  EJN 
are 
Practice  Guide 
likely to be limited. 

 
 
 
Problem 2: Diverging interpretation of “courts” under the Regulation by the national authorities 

Option  

Effectiveness 
degree.  

However, it questionable to 
what 
legal 
extent 
professionals  (in  particular 
those  who  do  not  regularly 
work on cross-border cases) 
are  aware  of  and  use  the 
EJN  Practice  Guide.  Thus, 
it  would  still  be  possible 
that  uncertainty  in  relation 
to  the  meaning  of  this  term 
arises.  

This  option  would  broaden 
the scope of the Regulation, 
as  the  concept  of  judicial 
authorities is wider than the 
concept of courts.  

Thus,  there  may  be  fewer 
cases 
the 
in  which 
application of Regulation is 
denied. This could also lead 

2.2. Replacing 'courts' 
in Art 1 with 'judicial 
authorities' 

Guide 

Efficiency 
Practice 
is 
currently  drafted  in  a 
simple  format  (so  no 
additional 
for 
layout  or  design  would 
be expected).46  

costs 

The  Guide  exists  as  a 
digital  guide,  so  it  can 
be  assumed  that  there 
costs 
would 
no 
associated  with 
the 
distribution  of  the  new 
guide.47  

would 
as 

The  efficiency  of  this 
be 
option 
medium, 
some 
limited  positive  effects 
could  be  achieved  at 
low costs. 

The  option  is  expected 
limited 
to 
in 
positive 

impact 

have 

a 

Proportionality 

Rating  Conclusion 

option 

is 
The 
proportionate, 
but 
would  not  fully  address 
the problem at hand. 

The 
proportionate.  

option 

is 

+2 

be 

flexibility 

concept  of 

court 
The 
broadened, 
would 
to 
leaving 
Member  States  to  decide 
which types of bodies may 
pose  requests  under 
the 
Regulation.  

The  option  would  have 
a  small  positive  impact 
at low costs.   

Some  limited  positive 
benefits are expected in 
relation 
the 
objectives  of  increased 
legal  certainty  and  in 
reducing  delays  and 

to 

46 If the update of the Guide was to be contracted, additional costs may be incurred. However, this would likely be done for all necessary updates together. Therefore, these 

costs are calculated at the level of the preferred policy package.  

47 It is possible that courts would print a new version of the guide. This would then be based on all updates relating to all sub-options. Therefore, these costs are calculated at 

the level of the preferred policy package. 

81 

 
 
 
                                                            
Problem 2: Diverging interpretation of “courts” under the Regulation by the national authorities 

Option  

Effectiveness 
to  a  small  reduction  of  the 
burden  for  citizens,  as  they 
the 
may  benefit 
application 
the 
Regulation in more cases.  

from 
of 

However,  the  option  would 
not  necessarily  have  any 
major  positive  impact  in 
terms  of  increasing  legal 
certainty, 
different 
as 
interpretations in relation to 
the  concept  of  “judicial 
authorities”  may 
arise, 
similar to the current issues 
relating 
the  concept 
the 
“court”.  This 
amendment  would  ensure 
further  clarity 
those 
countries where the relevant 
case(s)  is  not  handled  by 
courts  in  the  strict  sense. 
Again,  this  could  lead  to  a 
the 
reduction  of 
small 
burden 
for  citizens  and 
businesses.  

said, 

in 

to 

Proportionality 

Rating  Conclusion 

The  option  does  not  go 
beyond  what  is  necessary 
and  this  type  of  action 
could  not  be  taken  at  the 
Member State level. 

costs  for  stakeholders 
involved in the cases as 
part  of  which  evidence 
is  taken  across  borders. 
Low  costs  would  be 
incurred  in  relation  to 
legislative 
drafting, 
awareness  raising  and 
legal 
for 
time 
professionals 
to 
familiarise 
themselves 
with the new rules.  

option 

is 
The 
proportionate, 
but 
would  not  fully  address 
the problem at hand. 

Efficiency 
achieving 
the 
objectives.  At  the  same 
the  costs  for  this  option 
would  be  low,  as  they 
would  be  limited  to  the 
the  new 
drafting  of 
legislative 
and 
text 
raising  awareness  of  / 
legal 
training 
professionals  on 
the 
amendment.  

need 

At  the  same  time,  legal 
professionals 
(e.g. 
lawyers  and  court  staff) 
to 
would 
themselves 
familiarise 
with 
rules. 
the  new 
These  costs  are  not 
be 
expected 
significant  and  would 
not  be  passed  on  to 
citizens  /  businesses,  as 
every  legal  professional 
would  only  spend  little 
time  (e.g.  half  an  hour) 
once.  

to 

Such  costs  are  regarded 
as out-of-pocket costs or 

82 

 
 
 
Problem 2: Diverging interpretation of “courts” under the Regulation by the national authorities 

Option  

Effectiveness 

Proportionality 

Rating  Conclusion 

Efficiency 
business  as  usual  and 
not  as  additional  costs 
compared 
the 
to 
baseline scenario. 

2.3.  Stating  that  all 
authorities  labelled  as 
courts  in  other  EU 
judicial 
civil 
instruments  may  use 
the Regulation 

This  option  would  increase 
legal  certainty  to  a  small 
degree.  

to  other 

While  the  definition  would 
be  clearer,  the  solution  of 
referring 
legal 
instruments  makes  it  more 
legal 
difficult 
professionals  to  apply  the 
Regulation.  They  would 
need  to  know  or  check  the 
definitions  in  other  legal 
instruments.  

for 

The  efficiency  of  this 
option would be low.  

The 
proportionate.  

option 

is 

+1 

low 

The costs for this option 
(cf. 
would  be 
description under option 
2.2).  However, 
the 
benefits  would  also  be 
limited. 

The 
definition  would 
follow  definitions  already 
agreed 
other  EU 
in 
instruments.  

On  this  basis,  the  positive 
impacts,  including  on  legal 
certainty  and  the  burden  of 
citizens 
/  businesses  are 
expected to be limited.  

83 

The  option  would  have 
limited positive impacts 
at low costs.  

limited 
very 
Some 
positive  benefits  are 
expected  in  relation  to 
the 
of 
objectives 
increased legal certainty 
and  in  reducing  delays 
and 
for 
costs 
involved 
stakeholders 
in  the  cases  as  part  of 
which evidence is taken 
across  borders.  Low 
costs would be incurred 
in relation to legislative 
awareness 
drafting, 
time  for 
raising  and 
to 
legal  professionals 
familiarise 
themselves 
with the new rules.  

option 

is 
The 
proportionate, 
but 
would  not  fully  address 

 
 
 
Problem 2: Diverging interpretation of “courts” under the Regulation by the national authorities 

Option  

Effectiveness 

Efficiency 

Proportionality 

Rating  Conclusion 

(a)  Replacing 
in  Art  1 
'judicial 

2.4. 
'courts' 
with 
authorities' 

+ 

2.4.  (b)  Providing  a 
general  definition  of 
'judicial  authorities' 
(similarly 
the 
Succession 
Regulation  or 
Maintenance 
Regulation) 

the 

to 

This  option  would  increase 
legal  certainty  and  reduce 
delays  and  costs  for  public 
administrations,  businesses 
and  citizens  to  a  medium 
degree. 

fewer 
There  would  be 
instances  in  which  it  is  not 
clear  whether  or  not  the 
Regulation  may  be  applied. 
Thus, there would be fewer 
exchanges  between  courts 
to clarify whether or not the 
/ 
requesting 
institution 
is  actually  a 
court  under  the  Regulation, 
also  reducing  the  overall 
time of the proceedings to a 
small degree.  

authority 

slightly 

The scope of the Regulation 
broadened, 
is 
possibly leading to a higher 
number  of  cases  in  which 
citizens  /  businesses  can 
benefit from the application 
of the Regulation.  

The  efficiency  of  this 
option would be high.  

The 
proportionate. 

option 

is 

+3 

be 

flexibility 

concept  of 

court 
The 
broadened, 
would 
leaving 
to 
Member  States  to  decide 
which types of bodies may 
pose  requests  under 
the 
Regulation.  

The  option  does  not  go 
beyond  what  is  necessary 
and  this  type  of  action 
could  not  be  taken  at  the 
Member State level. 

high 

positive 
The 
benefits described under 
“effectiveness” could be 
achieved at low costs.  

Costs  would  be  limited 
to  the  drafting  of  the 
new  legislative  text  and 
raising  awareness  of  / 
legal 
training 
professionals  on 
the 
amendment.  

need 

At  the  same  time,  legal 
professionals 
(e.g. 
lawyers  and  court  staff) 
to 
would 
themselves 
familiarise 
with 
rules. 
the  new 
These  costs  are  not 
be 
expected 
significant  and  would 
not  be  passed  on  to 
citizens  /  businesses,  as 
every  legal  professional 
would  only  spend  little 

to 

84 

the problem at hand. 

The  option  would  have 
a positive impact at low 
costs. 

There would be positive 
benefits  in  relation  to 
the 
of 
objectives 
increased legal certainty 
and  in  reducing  delays 
and 
for 
costs 
stakeholders 
involved 
in  the  cases  as  part  of 
which evidence is taken 
across  borders.  Low 
costs would be incurred 
in relation to legislative 
awareness 
drafting, 
time  for 
raising  and 
to 
legal  professionals 
familiarise 
themselves 
with the new rules.  

The 
proportionate. 

option 

is 

 
 
 
Problem 2: Diverging interpretation of “courts” under the Regulation by the national authorities 

Option  

Effectiveness 

Proportionality 

Rating  Conclusion 

Efficiency 
time  (e.g.  half  an  hour) 
once.  

Such  costs  are  regarded 
as out-of-pocket costs or 
business  as  usual  and 
not  as  additional  costs 
compared 
the 
to 
baseline scenario. 

Preferred option 

The preferred option is 2.4. This  option would add  most  clarity and thus it would also reduce costs and delays to the 
highest degree. There are low costs associated with the implementation of the option (related to the drafting of the new 
legislative text and raising awareness of / training legal professionals on the amendment) and it is proportionate. It would 
be  useful  to  combine  this  with  an  update  of  the  EJN  guidance  documents  (option  2.1)  or  any  other  new  guidance 
document. 

85 

 
 
 
 
1.1.2  Options addressing the diverging understanding what kind of judicial actions constitute a “taking of evidence” under the Regulation 

Assessment of options for problem 3 “Diverging understanding what kind of judicial actions constitute a “taking of evidence” under the 
Regulation” 

Problem 3: Diverging understanding what kind of judicial actions constitute a “taking of evidence” under the Regulation 

Option 

Effectiveness 

Efficiency 

Proportionality 

Rating  Conclusion 

3.1  Upgrading  the 
2006  EJN  Practice 
Guide 
include 
to 
guidance  on  which 
kind 
judicial 
actions  constitute  a 
“taking of evidence” 
under 
the 
Regulation 

of 

This  option  would  increase 
legal  certainty  and  reduce 
delays  and  costs  for  public 
administrations,  businesses 
and  citizens 
to  a  small 
degree.  The exact  extent  of 
the  benefits  would  be 
dependent  on  the  uptake  of 
the  information  in  the  EJN 
practice guide. 

There  would  be 
fewer 
instances  in  which  it  is  not 
clear  whether  or  not  the 
Regulation may be applied. 
Thus, there would be fewer 
exchanges  between  courts 
to  clarify  whether  or  not  a 
request  actually  falls  under 
the  Regulation  or  not,  also 
reducing the overall time of 
the  proceedings  to  a  small 
degree.  

The  efficiency  of  this 
be 
option 
medium.  

would 

impacts 

While  the option would 
limited 
some 
have 
in 
positive 
achieving 
the 
objectives,  the  costs  for 
this  option  would  also 
be  rather  low.  It  would 
be necessary to come to 
an  agreement  on  how 
the  guidance  should  be 
phrased. This could, for 
done 
be 
example, 
EJN 
the 
within 
network, possibly in the 
context 
existing 
of 
meetings. 

Efforts  are  likely  to  be 
the  EJN 
limited,  as 

86 

The 
proportionate.  

option 

is 

+1 

The  option  does  not  have 
any  binding  effect  and  the 
be 
information  would 
included  in  a  document 
that  already  exists.  Hence, 
the  option  does  not  go 
beyond  what  is  necessary 
to address the problem and 
the  type  of  action  is  as 
possible. 
as 
simple 
Furthermore,  this  type  of 
action  could  not  be  taken 
by 
individual  Member 
States.  Finally,  the  costs 
are minimal. This said, the 
option  would  not  fully 
address the problem. 

The  option  would  have 
a  small  positive  impact 
at low costs. 

to 

Some  limited  positive 
benefits are expected in 
relation 
the 
objectives  of  increased 
legal  certainty  and  in 
reducing  delays  and 
costs  for  stakeholders 
involved in the cases as 
part  of  which  evidence 
is taken across borders. 
The  exact  extent  of  the 
be 
benefits  would 
the 
on 
dependent 
uptake 
the 
information  in  the  EJN 
practice guide. 

of 

The costs for procuring 
an  update  of  the  EJN 

 
 
 
 
Problem 3: Diverging understanding what kind of judicial actions constitute a “taking of evidence” under the Regulation 

Proportionality 

Rating  Conclusion 

Practice  Guide 
likely to be limited. 

are 

option 

is 
The 
proportionate, 
but 
would not fully address 
the problem at hand. 

Guide 

Efficiency 
Practice 
is 
currently  drafted  in  a 
simple  format  (so  no 
additional 
for 
layout  or  design  would 
be expected).48  

costs 

The  Guide  exists  as  a 
digital  guide,  so  it  can 
be  assumed  that  there 
would  be  no  costs 
associated  with 
the 
distribution  of  the  new 
guide.49  

Option 

Effectiveness 

However, it questionable to 
what 
legal 
extent 
professionals  (in  particular 
those  who  do  not  regularly 
work on cross-border cases) 
are  aware  of  and  use  the 
EJN  Practice  Guide.  Thus, 
it  would  still  be  possible 
that  uncertainty  in  relation 
to the meaning of this term 
arises.  

However, it questionable to 
what 
legal 
extent 
professionals  (in  particular 
those  who  do  not  regularly 
work on cross-border cases) 
are  aware  of  and  use  the 
EJN  Practice  Guide.  Thus, 
it  would  still  be  possible 
that 
invalid  requests  are 
sent  under  the  Regulation 
or  that  valid  requests  are 
denied.  

48 If the update of the Guide was to be contracted, additional costs may be incurred. However, this would likely be done for all necessary updates together. Therefore, these 

costs are calculated at the level of the preferred policy package.  

49 It is possible that courts would print a new version of the guide. This would then be based on all updates relating to all sub-options. Therefore, these costs are calculated at 

the level of the preferred policy package. 

87 

 
 
 
                                                            
Problem 3: Diverging understanding what kind of judicial actions constitute a “taking of evidence” under the Regulation 

Option 

Effectiveness 

Efficiency 

Proportionality 

Rating  Conclusion 

In addition, it would still be 
defined  based  on  national 
law  what  types  of  actions 
are  actually  allowed.  Thus, 
it  would  still  be  possible 
that 
are 
considered  to  be  included 
in  the  concept  “taking  of 
evidence”  are  denied  based 
on national law. 

requests 

that 

3.2  (a)  Completing 
'taking  of 
Art  1 
evidence'  with  'and 
other judicial acts'  

This  option  would  increase 
legal  certainty  and  reduce 
delays  and  costs  for  public 
administrations,  businesses 
and  citizens  to  a  medium 
degree. 

is 

of 

scope 

the 
The 
slightly 
Regulation 
broadened by adding “other 
judicial  acts”.  Thus, 
the 
Regulation  could  apply  in 
relation to a higher number 
of  actions,  possibly  leading 
to a higher number of cases 
in  which 
/ 
businesses can benefit from 
the 
the 
application  of 
Regulation. 

citizens 

The  efficiency  of  this 
option would be high.  

The 
proportionate.  

option 

is 

+3 

A definition is added to the 
Regulation,  which 
is 
suitable  to  address  a  lack 
of  clarity.  In  addition,  the 
broadened, 
concept 
to 
leaving 
Member States. 

is 
flexibility 

Action  at 
the  Member 
State level would not solve 
this problem.  

The costs for this option 
would  be  low,  as  they 
would  be  limited  to  the 
the  new 
drafting  of 
and 
text 
legislative 
/ 
raising 
awareness 
legal 
training 
of 
professionals  on 
the 
amendment.  

At  the  same  time,  legal 
professionals 
(e.g. 
lawyers  and court  staff) 
to 
would 
themselves 
familiarise 
rules. 
with 

the  new 

need 

88 

The  option  would  have 
a positive impact at low 
costs. 

would 
benefits 
to 

be 
There 
in 
positive 
relation 
the 
objectives  of  increased 
legal  certainty  and  in 
reducing  delays  and 
costs  for  stakeholders 
involved in the cases as 
part  of  which  evidence 
is taken across borders. 
Low  costs  would  be 
incurred  in  relation  to 
drafting, 
legislative 
awareness  raising  and 
legal 
for 
time 

 
 
 
 
Problem 3: Diverging understanding what kind of judicial actions constitute a “taking of evidence” under the Regulation 

Proportionality 

Rating  Conclusion 
professionals 
familiarise 
with the new rules.  

to 
themselves 

The 
proportionate. 

option 

is 

to 

Efficiency 
These  costs  are  not 
be 
expected 
significant  and  would 
not  be  passed  on  to 
citizens  /  businesses,  as 
every  legal  professional 
would  only  spend  little 
time  (e.g.  half  an  hour) 
once.  

Such costs are regarded 
as  out-of-pocket  costs 
or business as usual and 
not  as  additional  costs 
compared 
the 
to 
baseline scenario. 

Option 

Effectiveness 

fewer 
There  would  be 
instances  in  which  it  is  not 
clear  whether  or  not  the 
Regulation may be applied. 
Thus, there would be fewer 
exchanges  between  courts 
to  clarify  whether  or  not  a 
request  actually  falls  under 
the  Regulation  or  not,  also 
reducing the overall time of 
the  proceedings  to  a  small 
degree.  

However,  it  would  still  be 
defined  based  on  national 
law  what  types  of  actions 
are  actually  allowed.  Thus, 
it  would  still  be  possible 
that 
are 
considered  to  be  included 
in  the  concept  “taking  of 
evidence”  are  denied  based 
on national law.  

requests 

that 

Creating 

3.3. 
a 
“conflict  of 
laws” 
solution: 
i.e. 
the 
subjecting 
interpretation  of  the 
concept  of  “taking  of 

of 

This option would solve the 
diverging 
issue 
of 
interpretations 
the 
of 
“taking 
concept 
evidence” by subjecting the 
interpretation  to  only  one 

The  efficiency  of  this 
option 
be 
limited.  

would 

The costs for this option 
would  be  low,  as  they 

The  proportionality  of  this 
option is questionable.  

-1 

Under  this  option,  it  is 
that  Member 
possible 
to 
States  would  have 

This 
option  would 
entail low costs (mainly 
related 
legislative 
awareness 
drafting, 
raising) but the positive 
benefits  would  also  be 

to 

89 

 
 
 
Problem 3: Diverging understanding what kind of judicial actions constitute a “taking of evidence” under the Regulation 

Rating  Conclusion 

very limited.  

is 

option 

The main draw-back of 
this 
its 
proportionality,  which 
is  questionable  based 
on  the  limited  positive 
benefits  in  comparison 
to  potential  effects  on 
Member States.  

Option 
evidence”  to  the  law 
the 
either 
of 
requesting 
the 
requested MS 

or 

Effectiveness 
Member State per case.  

Nevertheless,  there  would 
still be legal uncertainty, in 
particular  because 
there 
would  be  no  common 
definition.  For  example,  if 
the  definition  would  be 
subject  to  the  law  of  the 
requested  Member  State,  it 
would  still  be  possible  that 
legal  professionals  in  the 
requesting  Member  States 
are  not  aware  of 
that 
definition.  They  might  thus 
pose  requests  for  actions 
that  do  not  fall  under  the 
concept 
of 
evidence”  in  the  requested 
Member State, which could 
lead 
additional 
exchanges  between  courts 
and  potentially  to  delays  in 
the proceedings.  

“taking 

to 

the 

If 
interpretation  was 
subject  to  the  requesting 
Member  State,  it  would  be 
possible  that  courts  intend 
to  collect  evidence  in  ways 

Efficiency 
would  be  limited  to  the 
the  new 
drafting  of 
and 
text 
legislative 
/ 
raising 
awareness 
legal 
of 
training 
professionals  on 
the 
amendment.  

that  evidence 

Proportionality 
accept 
is 
taken  in  their  territory  in 
ways  that  are  not  allowed 
based  on 
their  national 
law.  This  would  compare 
to very limited benefits.  

need 

At  the  same  time,  legal 
professionals 
(e.g. 
lawyers  and court  staff) 
would 
to 
themselves 
familiarise 
with 
rules. 
the  new 
These  costs  are  not 
expected 
be 
significant  and  would 
not  be  passed  on  to 
citizens  /  businesses,  as 
every  legal  professional 
would  only  spend  little 
time  (e.g.  half  an  hour) 
once.  

to 

Such costs are regarded 
as  out-of-pocket  costs 
or business as usual and 
not  as  additional  costs 
compared 
the 
to 
baseline scenario. 

90 

 
 
 
Problem 3: Diverging understanding what kind of judicial actions constitute a “taking of evidence” under the Regulation 

Option 

Effectiveness 
that  are  not accepted in  the 
requested  Member  State. 
This  would  then  lead  to 
questions 
and  probably 
delays.  

Efficiency 

Proportionality 

Rating  Conclusion 

Preferred option 

The  preferred  option  is 3.2.  This  option  would add  most  clarity  and  thus  it  would also  reduce costs  and  delays  to  the 
highest degree. There are low costs involved and it is proportionate. It would be possible to combine this with an update 
of the EJN guidance documents.  

91 

 
 
 
 
1.1.3  Options addressing the method of taking evidence requested not available in the requested Member State, e.g. video-conferencing 

Assessment of options for problem 4 “Method of taking evidence requested not available in the requested Member State, e.g. video-
conferencing” 

Problem 4: Method of taking evidence requested not available in the requested Member State, e.g. video-conferencing (VC) 

Option 

Effectiveness 

Efficiency 

Proportionality 

Rating  Conclusion 

4.1. Awareness 
raising of courts50 of 
existing ways, 
procedures and 
examples of the 
benefits of using and 
accepting digital 
methods, as well as 
the adoption of 
electronic systems in 
courts  

include 
of 

Awareness raising of courts 
could 
the 
printed 
development 
material  (i.e.  flyers)  and 
digital  content  (Word  and 
Power  Point,  as  well  as 
website  content)  that  could 
be published physically, via 
the eJustice portal, or e.g. as 
larger 
of 
part 
communication  packages to 
courts. 

Raising  the  awareness  of 
courts  of  digital  tools  to 
across 
take 
evidence 
to 
borders 
the 
contribute 
the 
improvement 

is  expected 
to 

of 

Overall,  raising  courts’ 
awareness  is  considered 
to 
a  pragmatic  way 
improve  the  take-up  of 
the 
VC  compared 
Baseline 
Scenario. 
are,  however, 
There 
constraints 
time, 
resource and reach. 

of 

to 

for 

costs 

the 
The 
awareness 
raising 
activities  are  dependent 
the  exact  scope, 
on 
means and target groups 
of  the  activities.  It  can 
the 
be  expected 
these 
organisation  of 
be 
activities  would 

that 

The  option 
proportionate.  

is  overall 

+1 

is 

option 

not 
This 
considered  to  go  beyond 
what  is  needed  to  achieve 
the policy objectives.  

It  is,  however,  not  fully 
clear  at  this  stage  to  what 
extent  the  Member  States 
are  not  better  equipped  to 
promote  the  use  of  VC 
facilities  compared  to  the 
Commission.  They  have  a 
better  understanding  about 
their  national  systems,  the 
availability 
VC 
facilities,  as  well  as  their 

of 

Awareness 
raising 
activities  are  expected 
limited 
to  provide  a 
improvement  compared 
to 
Baseline 
the 
Scenario. 

Although the awareness 
raising  activities  are 
expected  to  contribute 
to  achieving  the  policy 
objectives, the extent to 
benefits 
which 
the 
is 
the  costs 
exceed 
ambiguous.  Moreover, 
Member  States  may  be 
better equipped than the 
Commission to promote 
the use of VC facilities, 

50  In  a  previous  version  of  this  policy  option,  the  awareness  raising  activities  also  targeted  citizens.  The  benefits  of  targeting  citizens  is  not  clear,  in  view  of  that  the 
importance of the Evidence Regulation and in particular the availability of VC facilities in courts is not a topic of general interest, but rather those that actually have to 
deal with legal proceedings (i.e. professionally). This said, instead of reaching out to them directly, citizens could anyway be addressed by providing relevant information 
on the eJustice portal.  

92 

 
 
 
                                                            
Problem 4: Method of taking evidence requested not available in the requested Member State, e.g. video-conferencing (VC) 

Option 

Effectiveness 
efficiency  and  speed  of 
judicial proceedings.  

Efficiency 
procured 
Commission.  

by 

the 

to 

lead 

Increased  awareness  could, 
for example, have a positive 
effect  on  the  supply  and 
demand of digital tools such 
as  VC  which,  in  turn,  is 
to  an 
expected 
increased  take-up  of  such 
facilities in practice. 
  Courts that are already in 
VC 
possession 
facilities  are  expected  to 
use 
increasingly 
frequent; and 

them 

of 

  Courts  that  do  not  yet 
possess  VC  facilities  are 
expected 
to  be  more 
likely  to  invest  in  the 
necessary 
technical 
equipment. 

Hence,  the  extent  of  the 
benefits 
be 
dependent on the take-up by 
courts,  incl.  the  possibility 

would 

51 Based on the Council of Europe’s 2014 CEPEJ database. 

Experience-based 
estimates  show  that  the 
of 
implementation 
awareness 
raising 
targeting  a 
activities 
limited 
comparatively 
audience  can  at  least 
cost one million Euro if 
implemented  in  all  28 
States 
Member 
(depending of course on 
the  types  of  channels, 
frequency 
of 
communication, level of 
information etc.). 

approx. 

Considering  that  there 
82,000 
are 
professional  judges  in 
the  EU51,  which  could 
all  be  handling  a  cross-
border  case,  costs  could 
be  up 
to  around  2 
million  Euro,  if  each 

93 

Rating  Conclusion 
at 
in 
least 
Member States. 

larger 

Proportionality 
practical  functioning  than 
the Commission. This is of 
particular  importance  for 
larger  Member  States  such 
as  Germany  in  which  VC 
is not even used to the full 
extent possible in domestic 
procedures. 

Therefore,  it  is  considered 
the 
proportionate 
Commission 
in 
unison  with  the  Member 
States. 

for 
to  act 

The  option  may  impose  a 
relatively  small  budgetary 
burden on the Commission 
the 
for 
(procuring) 
and 
development 
the 
implementation 
awareness 
raising 
activities. 

of 

Secondary  costs,  born  by 
States, 
the  Member 
however, 
be 
significant.  The  take-up  is, 

could 

 
 
 
                                                            
Problem 4: Method of taking evidence requested not available in the requested Member State, e.g. video-conferencing (VC) 

Option 

Effectiveness 
for  the  courts  to  set  aside  a 
the 
to 
budget 
relevant equipment. 

acquire 

Depending  on  the  number 
of courts that actually invest 
in  VC  facilities  and 
its 
actual  use  in  practice,  this 
reduced 
could 
costs and delays for citizens 
and businesses. 

result 

in 

It  should  be  kept  in  mind, 
however,  that  supply  and 
demand  are  not  the  only 
determinants  of  VC  use  in 
legal proceedings.  

Although VC facilities may 
be  available  for  use  in  a 
specific  legal  proceeding,  it 
may  not  necessarily  be  the 
most  fitting  solution  for 
every 
all 
directly 
stakeholders 
involved 
to 
in 
actually use it. 

the  case 

case 

or 

Rating  Conclusion 

Proportionality 
however, voluntary and the 
VC  equipment  acquired 
could  also  be  used  for 
domestic cases. 

the 
To  conclude,  while 
type  of  action  does  not  go 
beyond  what  is  necessary 
to  address  the  problem.  It 
would,  however,  not  fully 
address  the  problem  and 
the  Member  States  could 
be better placed to lead the 
activities. 

Efficiency 
individual  would  be 
targeted directly52. 

In  addition,  courts  are 
expected  to  invest  in 
VC  facilities  as  a  result 
to  the awareness raising 
activities. 

indicated 
Interviewees 
acquisition, 
that 
the 
and 
implementation, 
operation 
of 
professional,  high-end 
VC 
(e.g. 
equipment 
similar to those used by 
the Commission in their 
larger 
conference 
rooms)  could  cost  as 
much  as  90,000  Euro  – 
depending  on  the  type 
its 
of 
functionalities 
(e.g. 
number of microphones, 
to 
cameras, 
is 
which 
track 
smart  and  can 

extent 
the  system 

systems 

and 

52 Based on the assumption of 25 Euro per person targeted. 

94 

 
 
 
                                                            
Problem 4: Method of taking evidence requested not available in the requested Member State, e.g. video-conferencing (VC) 

Option 

Effectiveness 

Proportionality 

Rating  Conclusion 

Efficiency 
conversations 
by 
zooming in on attendees 
that  currently  use  the 
microphone). 

This  estimate  seems  to 
be  very  high.  Prices 
available  online  show 
that  approx.  3,000  Euro 
per  month  could  be  a 
more 
realistic 
estimate.53 

This  means  that  annual 
costs per court could be 
in  the  range  of  36,000 
Euro. 

in 

According 
to  CEPEJ 
2014,  there  are  6,000 
the  EU  of 
courts 
which  a  limited  number 
already 
VC 
facilities.  Thus,  if  all 
be 
courts  were 
equipped  with  one  VC 
facility  –  which  is  still 
unlikely  –  costs  could 

has 

to 

53 See, for instance, the following website: https://www.videokonferenz.tv/videokonferenz-ratgeber/kostenvergleich/  

95 

 
 
 
                                                            
Problem 4: Method of taking evidence requested not available in the requested Member State, e.g. video-conferencing (VC) 

Option 

Effectiveness 

Proportionality 

Rating  Conclusion 

Efficiency 
be  as  high  as  216 
million  Euro  across  all 
Member  States,  i.e.  on 
average  8  million  Euro 
per Member State.  

for 
of 

There could be similarly 
the 
high 
costs 
the 
replacement 
current  system  after  a 
couple  of  years  of 
maintenance. 

the  extent 
this  option 

to 
Thus, 
is 
which 
efficient  overall 
(i.e. 
across  all  stakeholders, 
incl.  public  authorities) 
depends on the extent to 
which  costs  and  delays 
that  can  be  saved  in 
legal 
proceedings 
exceed  the  overall  costs 
of  the  implementation 
raising 
of  awareness 
regarding digital tools. 

Moreover, it depends on 
to  which 
the  extent 
costs  and  delays  can  be 
saved  in  comparison  to 

96 

 
 
 
Problem 4: Method of taking evidence requested not available in the requested Member State, e.g. video-conferencing (VC) 

Option 

Effectiveness 

4.2 (a) Using VC, 
telephone-
conferencing or other 
means of distant 
communication, as a 
rule, if a person 
should be heard from 
another MS (subject 
to availability of 
equipment at the 
court) 

+ 

The availability of technical 
is 
infrastructure 
the 
effectively 
backbone  of 
using  VC  facilities  across 
borders. 

lead 

This  could 
to  an 
increased  take-up  of  direct 
methods  to  take  evidence 
across  borders  under  the 
Regulation. 

Moreover, 
Member  States 

incentivising 
to  equip 

Efficiency 
domestic  means  to  take 
evidence  across  borders 
that  often  include  costs 
to  travel  to  the  court  in 
another Member State. 

Thus,  awareness  raising 
is  not  necessarily  an 
for 
option 
efficient 
public authorities. 

However,  it  is  expected 
that awareness activities 
raising  is  an  efficient 
option 
the 
costs  and  delays  for 
citizens and businesses.  

to  reduce 

Incentives  for  Member 
through 
States, 
e.g. 
national 
funding 
projects  from  the  EU 
budget,  is  a  proven  and 
efficient  means 
to 
accelerate the take-up of 
technical  solutions 
in 
the Member States. 

For  instance,  eCODEX 
was  funded  over  six 
an  EU 
years  with 

97 

Proportionality 

Rating  Conclusion 

(b) 

Option  4.2 
is  not 
considered  to  go  beyond 
what  is  needed  to  achieve 
the policy objectives and is 
considered 
be 
proportionate.  

to 

Some  questions,  however, 
need  to  be  clarified  with 
regard to option 4.2 (a). 

the 
specifically, 
More 
specific  grounds  based  on 
which  a  justified  deviation 

+2 

lack 

This  option  addresses 
the 
of  VC 
equipment  by  means  of 
providing  for  funding 
for Member States.  

a 

is 

take-up 
to 

This 
crucial 
prerequisite  to  improve 
direct 
the 
methods 
take 
across 
evidence 
borders,  e.g.  by  using 
legal 
in 
VC 

 
 
 
Problem 4: Method of taking evidence requested not available in the requested Member State, e.g. video-conferencing (VC) 

Option 
4.2 (b) Incentivise 
MS to equip courts 
with VC facilities 
through funding 

Effectiveness 
courts, e.g. through funding 
from  the  EU  budget  for 
national  projects,  can  be  – 
given 
appropriate 
procedural  flexibility  –  an 
effective  option  to  further 
improve  the  efficiency  and 
speed 
judicial 
of 
proceedings,  as  well  as  to 
reduce 
the  burden  from 
undue  costs  and  delays  for 
and 
citizens 
businesses 
in  cross-border 
involved 
proceedings. 

This is in particular valid as 
costs  to  equip  courts  with 
high-end  VC 
facilities 
could  be  around  8  million 
per 
Euro 
Member  State  (see  option 
4.1 under efficiency). 

average 

on 

At  this  stage,  it  is  not  clear 
what the hearing of a person 
in  another  Member  State 
telephone-
through  “VC, 
other 
or 
conferencing 
means 
distant 
of 
communication  means  as  a 

Efficiency 
budget  of  12  million 
Euro.  An  additional  12 
million  Euro  was  made 
available 
the 
by 
Member States. 

for 

It  is  expected  that  the 
funding 
VC 
equipment  would  cost 
considerably  less  than 
the 
for 
funding 
eCODEX. 

The  use  of  VC  or  other 
distance  communication 
systems  by  default  is 
considered  to  be  less 
costly per case than e.g. 
travelling abroad. While 
cross-border  travel  can 
be  around  20%  more 
expensive than domestic 
based 
travel 
on 
the  absolute 
research, 
costs 
amount 
associated 
with 
operating  VC  facilities 
be 
is 
marginal.  

expected 

of 

to 

There  can,  however, 

98 

Rating  Conclusion 
proceedings. 

There  are,  however, 
costs  associated  with 
this  option  for  the  EU 
national, 
as 
regional, 
local 
authorities. 

well 

and 

Moreover,  the  use  of 
VC  may  not  always  be 
the  most  appropriate 
solution in all cases. 

At  this  stage,  it  is  not 
clear if the option to use 
VC, 
telephone-
conferencing  or  other 
means 
distant 
of 
communication  as  a 
rule  is  appropriate  for 
legal  proceedings 
all 
and 
/ 
proportionate approach. 

efficient 

an 

Proportionality 
from the rule to use distant 
communication  is  possible 
would need to be clarified. 

It  seems  at  this  stage  that 
deviation  is  only  possible 
in 
appropriate 
equipment  is  not  available 
in court. 

case 

other 

regard, 

legal 
In 
this 
professionals 
consulted 
have  commented  that  VC 
distance 
and 
communication  means  are 
necessarily  most 
not 
the 
under 
appropriate 
specific  circumstances  of 
each  legal  proceeding  or, 
for instance if in particular 
VC  equipment  is  available 
within  reasonable  time  in 
order  not 
to  delay  a 
proceeding. 

Both  options  create  a 
financial 
and 
administrative  cost  for  the 
national  governments,  as 
well  as  regional  or  local 
authorities.  It  is  not  fully 

 
 
 
 
 
Problem 4: Method of taking evidence requested not available in the requested Member State, e.g. video-conferencing (VC) 

Option 

to 

of 

adapt 

Effectiveness 
rule”  entails  and  to  what 
extent  this  is  flexible  (e.g. 
to 
the 
it 
circumstances  of  a  specific 
case).  This  would  need  to 
be specified further with the 
Commission, e.g. in relation 
to: 
  Definition 
“other 
means 
distance 
communication  means” 
and 
from  VC 
apart 
telephone-conferencing 
(e.g. 
email, 
WhatsApp, Facebook); 
  Definition  of  “as  a  rule” 
and 
notable 
the 
exceptions,  which  would 
need  to  allow  courts  to 
adapt  the  proceeding  to 
the  specifics  of  a  case 
(e.g. 
lack  of  consent, 
cases  in  border  regions, 
or  hearing  of 
small 
children) 

Skype, 

  Administrative  processes 
through which deviations 
can  be  justified  and  the 
for 
associated  burden 

Proportionality 
clear  that  these  costs  will 
be commensurated with the 
objectives to be achieved. 

Rating  Conclusion 

in 
balance 
of 

Efficiency 
considerable 
one-off 
costs  associated  with 
turn, 
VC  which, 
the 
could 
VC 
efficiency 
compared 
travel, 
depending  of  course  on 
specific 
the 
the 
circumstances  of 
legal proceedings. 

to 

Moreover, 
the 
efficiency of this option 
depends on the extent to 
which  the  “rule”  of  VC 
and 
telephone-
conferencing  is  flexible 
and  can  be  adapted  to 
the  circumstances  of 
(e.g. 
case 
each 
involving  children),  as 
well  as  the  extent  to 
which  courts  have  a 
the 
burden 
grounds based on which 
the deviate from the rule 
and  e.g.  still  summon  a 
person to court 

justify 

to 

99 

 
 
 
Problem 4: Method of taking evidence requested not available in the requested Member State, e.g. video-conferencing (VC) 

Option 

Preferred option 

Source: Deloitte 

Effectiveness 
courts. 

Efficiency 

Proportionality 

Rating  Conclusion 

Options 4.1 and 4.2 (b) are considered to be the preferred options It remains to be seen at this stage to what extent option 
4.2  (a)  should  also  be  included  in  the  combined  preferred  policy  option.  It  would  certainly  need  to  include  a  broader 
exception  than  only  availability,  to  account  for  other  potentially  valid  reasons  why  videoconferencing  may  be  the 
preferred method (e.g. lack of consent, close distance to travel to the court in border regions, hearing of small children).  

100 

 
 
 
1.1.4  Options addressing that means under the Regulation are cumbersome and slower than the means  available in national law or other EU 

instruments 

Assessment of options for problem 5 “Means under the Regulation are cumbersome and slower than the means available in national law or other 
EU instruments” 

Problem 5: Means under the Regulation are cumbersome and slower than the means available in national law or other EU instruments 

Option 

Effectiveness 

Efficiency 

Proportionality 

Rating  Conclusion 

(a) 
5.1 
Communicating  the 
importance  of 
the 
standards 
uniform 
provided  by 
the 
Regulation 
(streamlined 
equal 
procedures, 
of 
standard 
protection  of 
the 
right  of  the  parties 
involved). 

+ 

5.1 (b) Best practices 
for competent courts 
to 
to  help 
apply 
the 
procedures  properly 
and without delay. 

them 

The  effectiveness  of  this 
option 
the 
to 
problem moderate. 

address 

of 

the 
Communicating 
the 
importance 
Regulation  contributes 
to 
legal  certainty  and  efficient 
requests 
of 
processing 
which  are  presently  often 
perceived  as  an  additional 
burden or not important. 

Likewise,  best  practices 
contribute to improving and 
streamlining 
possibly 
under 
procedures 
the 
if  Member 
Regulation, 
States 
into 
account.  This  may  also 
speed  and 
increase 
judicial 
efficiency 

them 

take 

the 

of 

The  option  is  considered 
to be efficient.  

The 
proportionate. 

option 

is 

+3 

effect, 
simple 

It  does  not  have  any 
is 
binding 
relatively 
to 
implement  and  thus  does 
not  go  beyond  what  is 
necessary  to  address  the 
problem. 

While  the  option  would 
the 
fully  address 
not 
problem, 
actions 
the 
described  could  not  be 
by 
effectively 
Member 
States 
themselves.  

taken 

is  expected 

In  terms  of  costs,  the 
to 
option 
mainly  affect  the  time 
required  for  competent 
courts 
legal 
and 
inform 
professionals 
themselves  about  how  to 
apply 
procedures 
and  without 
properly 
delay. 

to 

to 

These costs are, however, 
not regarded as additional 
costs  compared 
the 
baseline 
scenario,  but 
rather  as  business  as 
usual  (e.g.  similar  to  the 
argumentation 
outlined 
for option 2.2). 

101 

(a) 

and 

is 
option 
The 
moderately  effective  in 
addressing  the  problem 
and 
the 
achieving 
objectives. In particular, 
5.1 
(b) 
contribute  to  reducing 
legal  uncertainty  and 
may 
the 
increase 
efficiency  and  speed  of 
judicial 
proceedings 
under the Regulation. If 
requests  are  seen  as 
important, 
are 
likely  to  be  addressed 
faster  and  best  practice 
help 
examples 
competent 
to 
improve procedures.  

courts 

they 

At  the  same  time,  the 
option  is  efficient  and 

 
 
 
 
Problem 5: Means under the Regulation are cumbersome and slower than the means available in national law or other EU instruments 

Option 

+ 

5.1 
(c)  Awareness 
raising of courts and 
other 
legal 
professionals  of  the 
availability  of 
the 
direct  channel  of 
evidence 
taking 
under Art. 17. 

Effectiveness 
proceedings  (based  on  a 
understanding). 
common 
Nevertheless, 
means 
available under national law 
may  still  be  more  effective 
in 
terms  of  obtaining 
evidence.  

of 

lack 

taking 

of 
a 
However, 
awareness  about  the  direct 
channel 
of 
evidence was not  cited as  a 
major  source  of  delays. 
Here,  communication  and 
coordination  efforts  were 
identified 
the  main 
as 
source  of  delays.  Hence, 
while  5.1  (c)  and  5.1(b) 
could 
the 
raise 
attractiveness of direct ToE, 
their  effectiveness  in  terms 
of  speeding  up 
judicial 
proceedings is limited.  

Efficiency 

Proportionality 

Rating  Conclusion 

costs 

since 
proportionate, 
are 
additional 
to  be  high 
unlikely 
compared 
the 
benefits  of  faster  and 
more efficient provision 
of evidence.  

to 

however, 

if 
Overall, 
information and guidance 
is  available  more  readily 
and 
in  an  accessible 
manner,  search  costs  are 
reduced.  Best  practice 
examples  contribute 
to 
establishing  standardised 
solutions 
recurring 
for 
problems,  which  in  turn 
increase 
the  speed  of 
proceedings.  

for 

The level of efficiency of 
the option to some degree 
depends  on  the  channels 
used 
awareness 
(i.e.  whether 
raising 
information 
be 
can 
via 
easily 
accessed 
existing 
information 
sources)  and  the  scale  of 
information campaigns.  

5.2 (a) Defining other 
cross-
of 
means 
of 
taking 
border 
the 
evidence 
in 
in 
Regulation 

This  option  would  increase 
legal  certainty  and  reduce 
delays  and  costs  for  public 
administrations,  businesses 
and  citizens  to  a  medium 

While  the  option  would 
have  medium  positive 
impacts  in  achieving  the 
the 
objectives, 
direct 
this  option 
for 
costs 

The 
proportionate.  

option 

is 

+2 

The 
option 
existing  case 

codifies 
law  and 

The  option  would  have 
a  medium 
positive 
impact at a low cost. 

Some  positive  benefits 

102 

 
 
 
 
 
Problem 5: Means under the Regulation are cumbersome and slower than the means available in national law or other EU instruments 

to 

Option 
the 
addition 
two  ways: 
existing 
acknowledging 
the 
ways  sup-ported  by 
as 
CJEU 
the 
legitimate 
means 
under the Reg.: 

A 

Direct 
(i) 
examination  of  facts 
in  MS  B  by  experts 
appointed  by  courts 
in 
in  MS 
accordance  with  the 
procedural  rules  of 
MS  A, 
this 
not 
activity 
affect  the  sovereign 
powers of MS B 

insofar 
does 

Summoning 
(ii) 
foreign 
persons 
directly  to  the  trial 
court  (but  whenever 
possible,  VC  should 
have 
priority) 
Defining  other  means 
of  cross-border  ToE, 
acknowledging 
the 
ways supported in the 

Effectiveness 
degree.  

the 

use 

The 
be 
option  would 
effective  in  reducing  legal 
uncertainty, as existing case 
law  and  is  collected  and 
codified  in  one  document 
and 
of 
videoconferencing 
encouraged. In addition, the 
ToE 
through  diplomatic 
officers  or  consular  agents, 
an 
often  perceived 
effective 
by 
stakeholders,  is  recognised 
by  the  Regulation.  Legal 
practitioners who do not use 
the  channels  under 
the 
Regulation  often,  would  be 
new 
able 
information 
than 
referring 
individual 
CJEU decisions. 

access 
faster 

channel 

as 

to 

to 

As  a  result,  instances  in 
which it is not clear whether 
the  Regulation  shall  be 
applied  or  not  are  reduced. 
On  this  basis,  there  would 
be a higher share of cases in 

in 

Proportionality 
includes 
additional 
methods for the taking of 
evidence 
the 
Regulation,  which  are 
currently  already  used 
based on domestic law. It 
thus  does  not  go  beyond 
what is needed to address 
the  problem,  as  it  simply 
acknowledges 
existing 
means  already  in  use.  At 
the  same  time,  this  type 
of  action  could  not  be 
taken  at 
the  Member 
State level. 

Rating  Conclusion 

are  expected  in  relation 
the  objectives  of 
to 
increased legal certainty 
and  in  reducing  delays 
for 
costs 
and 
stakeholders 
involved 
in  the  cases  as  part  of 
which evidence is taken 
across  borders.  Low 
costs would be incurred 
in  relation  to  drafting 
and 
the 
amendment 
/ 
awareness 
legal 
training 
professionals  on 
the 
amendment.  

raising 
of 

The 
proportionate. 

option 

is 

text 
raising 
of 

Efficiency 
would also be rather low. 
They would be limited to 
the  drafting  of  the  new 
and 
legislative 
/ 
awareness 
legal 
training 
professionals 
the 
amendment.  This  said, 
the  mapping  of  existing 
national  means  of  cross-
border ToE could entail a 
significant 
or 
obstacle to the legislator.  

burden 

on 

While  the  mapping  and 
acknowledging  of  ways 
supported in the CJEU as 
legitimate  means  under 
the  Regulation  could  add 
to  the  complexity  of  the 
Regulation 
such, 
search costs of courts and 
adequate 
for 
lawyers 
be 
could 
means 
significantly reduced.  

as 

courts 

However, 
and 
lawyers  would  still  have 
to  check  and  understand 
legal 
if, 

in  a  given 

103 

 
 
 
Problem 5: Means under the Regulation are cumbersome and slower than the means available in national law or other EU instruments 

Option 
CJEU  as  legitimate 
the 
means 
Regulation. 

under 

+ 

5.2 (b) Regulating the 
taking  of  evidence 
through 
diplomatic 
officer  or  consular 
agent  as  a  specific 
taking  of 
way  of 
evidence  under 
the 
line  with 
in 
Reg., 
relevant  provision  of 
the 
1970  Hague 
Convention-Regulate 
the 
through 
diplomatic  officer  or 
consular  agent  as  a 
specific way of taking 
of  evidence  under  the 
Regulation. 

ToE 

Effectiveness 
which an informed decision 
about the method for cross-
border taking of evidence is 
taken.  The  decision  for  an 
adequate  means  may, 
however,  in  some  instance 
be  more  time  consuming. 
Still, on this basis, it can be 
the  most 
that 
expected 
efficient  method  suitable  to 
the  situation  at  hand 
is 
chosen  in  a  higher  share  of 
cases.  This  would  overall 
lead  to  time  savings  for 
businesses  and  citizens  as 
parties in proceedings.  

The  effectiveness  of 
the 
option  would  be  increased 
by 
accompanied 
if 
providing 
additional 
guidance  and  awareness-
raising (see 5.1).  

Proportionality 

Rating  Conclusion 

Efficiency 
proceeding, 
the 
Regulation  could  be  or 
even  would  have  to  be 
applied,  or 
further 
domestic  means  could  be 
used.  

if 

The  option  could 
thus 
still  lead  to  delays  in 
legal  proceedings  if,  for 
instance, they can only be 
commenced  later  (e.g.  in 
case  ambiguities  exist  if 
the 
is 
Regulation 
not). 
applicable 
the 
Nevertheless, 
of 
increased 
available 
is 
expected  to  reduce  these 
instances.  

clarity 
means 

or 

5.3. Adapt/improve 
the procedures of 
taking of evidence in 
the Regulation (both 
the one through 
requested courts and 

The  effectiveness  of  this 
is  moderate,  as 
option 
communication 
by 
could 
electronic  means 
increase 
speed  up  and 
of 
efficiency 

The  efficiency  of 
option would be low.  

this 

Using an additional e-tool 
for communication would 
create  additional,  one-off 
costs  for  courts  and  legal 

104 

is 

option 

not 
The 
considered  proportionate 
as  establishing  an  e-tool 
additional 
creates 
financial 
and 
administrative  costs  for 

0 

The effectiveness of the 
option  is  moderate,  as 
legal  uncertainty  is  not 
and 
reduced 
improvements 
with 
to  speed  and 
regard 

 
 
 
Problem 5: Means under the Regulation are cumbersome and slower than the means available in national law or other EU instruments 

Rating  Conclusion 

efficiency 
proceedings 
ambiguous.  

of 
remain 

The  efficiency  of  this 
option  is  low,  since  an 
system 
additional 
to  be 
would  have 
and 
established 
maintained for a limited 
number 
cases 
of 
(overall). 

The  option 
proportionate. 

is  not 

Option 
the direct taking of 
evidence): 

5.3 (i) Include a 
provision on the 
establishing of a tool 
for e-communication 
and secure 
transmission of docs 
between the 
designated authorities 
(e.g. eCODEX, 
eJustice Portal) and 
making its use 
mandatory. 

+ 

5.3 (ii) Ensure 
automatic logging of 
the steps of the 
workflow using the 
tool specified in 5.3. 
(a). 

+ 

5.3  (iii)  Reshape  the 
uniform  procedure  of 
of 
direct 
evidence by removing 
requirement  of 
the 

taking 

Effectiveness 
communication  procedures, 
in  particular  if  forms  and 
documents 
already 
digital.  

are 

Efficiency 
professionals (e.g. via the 
training  or 
for 
need 
connecting 
existing 
systems to the e-tool).  

Increased  efficiency  and 
speed  of  procedures  may 
also  reduce  the  burden  for 
citizens,  if  the  duration  of 
proceedings 
reduced. 
However,  the  option  does 
not  contribute 
legal 
certainty. 

to 

is 

the 

same 

time, 
At 
effectiveness 
crucially 
depends  on  the  usability 
and  design  of  the  e-tool. 
stakeholder 
Based 
on 
assessments, 
automatic 
logging  of  steps  under  the 
workflow  may  not  be 
feasible 
relevant 
systems.  In  addition,  the 
concept of “logging of work 
steps”  would 
require  a 
precise  definition  of  these 
work  steps,  to  ensure  that 
the 
information 
and 
relevant 

persons 

reaches 

the 

in 

is 

expected 

to 
This 
increase  the  workload  of 
courts and lawyers which, 
in  turn,  has  an  effect  on 
the  fees  paid  by  citizens 
and businesses. 

steps 

under 

While  automated  logging 
the 
of 
workflow  could  lead  to 
some 
benefits 
in 
terms  of 
instances  (in 
providing  and  incentive 
for  faster  processing  of 
requests), the set-up costs 
for this system are high if 
it is to  be  integrated with 
court systems to facilitate 
automatic 
of 
steps in the workflow. 

logging 

105 

Proportionality 
courts 
another 
communication. 

to 

tool 

maintain 
of 

removing 

At  the  same  time,  the 
option  goes  beyond  what 
would  be  needed 
to 
address  the  problem.  In 
the 
addition, 
requirement 
of 
authorisation  for  direct 
taking  of  evidence  would 
conflict  with 
possibly 
national  procedural  laws 
in the Member States. 

well-
Likewise, 
established 
national 
arrangements  and  special 
circumstances 
(i.e. 
to 
existing  procedures 
process  requests)  would 
not  be  respected  by  the 
introduction  of  the  tool 
the 
abolishing 
and 
requirement 
for 
authorisation  concerning 
direct ToE. 

 
 
 
Problem 5: Means under the Regulation are cumbersome and slower than the means available in national law or other EU instruments 

Option 
authorisation. 

Effectiveness 
triggers actions.  

Efficiency 

Proportionality 

Rating  Conclusion 

Removing  the  requirement 
for  authorisation  for  direct 
ToE 
increase 
efficiency  and  speed  of 
procedures.  However,  the 
effect is likely to be small. 

could 

It  would  be  even  more 
useful, if it was specifically 
stated in the Regulation that 
other  methods,  e.g.  based 
on  national  law,  could  be 
used if they would be more 
efficient  than  those  in  the 
Regulation. This would add 
clarity  and  make  sure  that 
courts  can  always  use  the 
methods  most  suitable  to 
the case.  

Preferred option 

Source: 

The preferred options are 5.1 and 5.,2. The options would be moderately effective in addressing the problem, at the same 
time being efficient and proportionate. The effect of option 5.2 in reducing legal uncertainty and increasing the speed 
and efficiency of proceedings could be increased if accompanied by awareness raising and examples for improved way 
to make use of the means available under the Regulation could be positively affected by combining it with option 5.1. 

Deloitte

106 

 
 
 
 
1.1.5  Options  addressing  costly  and  time  consuming  paper-based  communication  and  barriers  to  the  acceptance  of  electronic  evidence 

produced or stored in another Member State 

Assessment of options for problem 6 “Uncertainty when the Regulation shall be used or other means in national or European law may be used” 

Problems 6: Paper-based communication between courts is time-consuming and costly, and  

7: Legal barriers to the acceptance of electronic (digital) evidence produced or stored in another Member State 

Option 

Effectiveness 

Efficiency 

Proportionality 

Rating  Conclusion 

6.1.  Sharing  of  best 
practices between MS 
(designated 
authorities) 
e-
communication 
and 
exchange 
electronic 
of  documents  under 
the Regulation  

on 

The option is expected to be 
effective  in  addressing  the 
problem, however only to a 
very limited extent.  

While  the  sharing  of  best 
practices in theory bears the 
potential  for  improving  and 
standardising 
procedures 
and 
communication 
for 
exchange of documents, the 
effect may only be achieved 
with  considerable  delay  (as 
systems 
e-communication 
need to be updated, adapted 
or procured).  

In  addition,  procedural  law 
and  court 
infrastructures 
differ  at  the  national  level 
and  legal  barriers  or  data 
concerns  may 
security 
inhibit 
nevertheless 

+1 

The 
is 
option 
proportionate.  It  does  not 
go  beyond  what  is  needed 
to  address  the  problems 
and  as  simple  as  possible 
to  address  the  problems  at 
hand.  

It leaves scope for national 
decisions  on  whether  to 
update systems and how.  

The  option  is  efficient, 
and 
collecting 
since 
presenting best practices 
could  be  facilitated  via 
existing  repositories  of 
and 
information 
communication (e.g. the 
eJustice portal).  

several 
However, 
aspects  might  lower  the 
efficiency of this option 
in the short run, as costs 
for  changing  systems 
are  borne  by  competent 
courts 
legal 
and 
practitioners, who might 
pass on part of the costs 
via fees. 

the 

run, 

if 
long 
In 
Member  States  choose 
to  act  based  on  best 

107 

The  option  is  effective 
limited  extent, 
to  a 
depending  on  whether 
best  practices  lead  to 
changes 
in 
communication 
between 
and 
increased  acceptance  of 
electronic  evidence  in 
practice.  

courts 

The  option  is  efficient, 
as  the  costs  to  share 
best  practices  are  likely 
to  be  low,  compared  to 
potential  benefits  from 
and 
courts 
best 
integrating 
practices 
to 
communicate 
using 
electronic  means  and 
accept digital evidence. 

adopting 

 
 
 
Problems 6: Paper-based communication between courts is time-consuming and costly, and  

7: Legal barriers to the acceptance of electronic (digital) evidence produced or stored in another Member State 

Option 

(a) 

CEF 
6.2 
eDelivery 
(eCodex) 
should be the  default 
for 
channel 
electronic 
communication  and 

Effectiveness 
voluntary  action  based  on 
best practices. 

is 

As a result, this option may 
lead  to  adoption  of  best 
practices  in  some  cases  but 
not  on  a  large  scale.  The 
therefore  not 
option 
effective  in  improving  the 
overall speed and efficiency 
of  procedures  under 
the 
Likewise, 
Regulation. 
competing  systems  (paper-
based  and  electronic)  could 
increase  legal  uncertainty. 
The burden for citizens and 
businesses  are  not  expected 
to decrease significantly. 

The 
be 
option  would 
effective  in  addressing  the 
problem  compared  to  the 
situation under baseline.  

Establishing 
eDelivery  as 

the 
CEF 
the  default 

Efficiency 
practice 
examples, 
benefits for citizens and 
businesses  include  time 
savings,  while  courts 
to  recover 
are 
initial 
investments  at 
least partially.  

likely 

Proportionality 

Rating  Conclusion 

At  the  same  time,  it  is 
proportionate,  as 
the 
proposed  instrument  is 
simple  and  does  not  go 
beyond  what  is  needed 
to address the problems. 

The  efficiency  of  this 
options  is  moderate  to 
high,  depending  on  the 
the 
time-horizon 
assessment. 

of 

The 
is 
option 
proportionate,  but  a  final 
assessment  would  depend 
on  the  clarification  on  the 
financing of the tool.54  

+2 

The 

initial, 

one-off 

The  scope  of  the  initiative 

The  option  would  be 
effective  in  addressing 
the  problem  compared 
to the baseline scenario. 
It  would  reduce  paper-
based  communication, 

54 It is assumed that development would be largely carried out using EU funds, as part of the CEF eDelivery / eCodex project. 

108 

 
 
 
                                                            
Problems 6: Paper-based communication between courts is time-consuming and costly, and  

7: Legal barriers to the acceptance of electronic (digital) evidence produced or stored in another Member State 

Proportionality 
is  limited  to  what  Member 
States  could  not  achieve 
themselves,  implementing 
a  new  EU-wide  tool.  It 
does not go beyond what is 
the 
needed 
only 
problem, 
it 
as 
concerns 
communication 
under the Regulation. 

to  address 

However,  the  principle  of 
accepting  electronic  forms 
of evidence limits the room 
for  national  decisions  on 
matters of procedural law.  

is 

Overall, 
a 
there 
justification  for  the  option 
paper-based 
if 
communication  

as 

Option 
document  exchanges 
between 
the 
agencies/courts 
under 
designated 
Regulation 
(EC) 
1206/2001 (as well as 
Service 
the 
Regulation). 
E-
communication 
should  replace,  as  a 
general  rule,  paper 
workflows. 

+ 

6.2  (b)  Specify in  the 
Regulation that: 

(i)  an  evidence  (e.g. 
declaration, 
testimony,  authentic 
instrument)  which  is 
transmitted  in  form 
electronic 
of 
through 
document 
the 
appropriate 
communication 
system  (see  point  6)) 
should  be  considered 

of 

Effectiveness 
channel 
electronic 
for 
communication  ensures  the 
use 
electronic 
to 
communication 
coordinate  ToE  or  transmit 
evidence obtained under the 
Regulation.  This  would 
increase 
speed  and 
efficiency of services. 

the 

the  burden 

At the same time, this could 
for 
reduce 
citizens  and  businesses  in 
proceedings  (e.g.  costs  due 
to delays).  

the 

paper-based 

Ensuring 
equal 
treatment  and  evidentiary 
value of electronic evidence 
(and 
electronic 
communication  overall)  to 
the 
system 
expected under the baseline 
important 
scenario 
is  an 
pre-condition 
for 
Legal 
effectiveness. 
speed 
and 
certainty, 
efficiency 
judicial 
of 
proceedings  increase  if  the 

Efficiency 
investment  costs  for  the 
system  can  be  regarded 
as  high.  However,  apart 
from  maintenance  and 
updates, 
the  marginal 
cost for each instance of 
is 
communication 
negligible  and 
faster 
than  the  use  of  postal 
services  (likely  to  be 
used  under  the  baseline 
scenario).    Using  postal 
services,  the  costs  are 
every 
incurred 
of 
instance 
communication, 
and 
likely to increase in line 
the  number  of 
with 
cross-border 
cases. 
Thus, costs and benefits 
of this option have to be 
have  to  be  weighted  In 
the long run, benefits  

at 

Whereas  the  costs  for 
costs  for  postal  services 
are incurred by courts in 
the  Member  States,  the 

109 

Rating  Conclusion 

increasing  speed  and 
of 
efficiency 
legal 
proceedings 
in  which 
is 
Regulation 
the 
applied.  At  the  same 
time, 
the 
excluding 
reject 
possibility 
evidence  on  the  basis 
that 
is  electronic 
could greatly reduce the 
burden  for  citizens  and 
businesses 
to  provide 
requested evidence. 

to 

it 

of 

The  efficiency  of  this 
options  is  moderate  to 
high,  depending  on  the 
time-horizon 
the 
While 
assessment. 
initial  one-off  costs  are 
and 
high 
implementation 
is 
expected  to  take  time, 
the  marginal  cost  for 
transmitting 
requests 
and  documents  would 
be 
In 
negligible. 
addition,  the  tool  could 

 
 
 
 
Problems 6: Paper-based communication between courts is time-consuming and costly, and  

7: Legal barriers to the acceptance of electronic (digital) evidence produced or stored in another Member State 

Proportionality 

Rating  Conclusion 

be  adopted  in  further 
EU-instruments,  which 
would 
its 
efficiency.  

increase 

option 

is 
The 
proportionate,  but 
a 
final  assessment  would 
the 
depend 
clarification 
the 
financing of the tool.55  

on 

on 

Effectiveness 
content  of  communication 
(i.e.  electronic  evidence), 
and  not  just  the  act  of 
to  be 
communicating 
electronic.  

is 

Option 
as  it  was  transmitted 
in  original  (paper) 
version 

(ii) 
the  quality  of 
evidence  may  not  be 
denied 
in  a  civil 
proceedings  from  a 
evidence 
digital 
is  produced 
which 
preserved 
and 
in  another 
(stored) 
MS 
in  accordance 
with  the  laws  of  that 
MSs   

large 

extend 

Efficiency 
new  portal  would  be  to 
a 
be 
developed  at  the  EU-
level.  It  needs  to  be 
clarified 
further,  who 
finances the tool and its 
maintenance.  

the 

use 

portals 
on 

of 
Given 
and 
existing 
depending 
the 
complexity  of  the  tool, 
the  development  costs 
will  likely  to  be  lower 
than the development of 
the  eCodex  portal  itself 
(24  Mio.  EUR).  In  any 
case, 
the 
national  level  may  be 
expected 
staff 
training and adapting  of 
institutional  routines  to 
use the new tool.  

costs 

for 

at 

55 It is assumed that development would be largely carried out using EU funds, as part of the eJustice portal or eCodex project. 

It  is  important  to  note, 

110 

 
 
 
                                                            
Problems 6: Paper-based communication between courts is time-consuming and costly, and  

7: Legal barriers to the acceptance of electronic (digital) evidence produced or stored in another Member State 

Option 

Effectiveness 

Proportionality 

Rating  Conclusion 

Efficiency 
in 
that 
cost 
the 
operation  would 
be 
largely  determined  by 
the  extent,  to  which  the 
tool would be integrated 
into  existing  systems. 
At  the  national  level, 
efficiency  gains  may  be 
reduced,  if  existing  IT 
to  be 
systems  need 
time 
adapted  or 
required 
transfer 
to 
communication between 
the  newly  established 
tool  and  any  existing 
national  tools.  At  the 
EU level, the costs  

the 

It  is  assumed  that  the 
tool  could  also  be  used 
for 
EU 
other 
instruments (such as the 
Regulation), 
Service 
positive 
which 
has 
implications 
the 
for 
efficiency. 

6.3 
designated 

Obliging 

The  option  will 
paper-based 

reduce 

The option is considered 
moderately 
to 

be 

The 
option 
proportionate.  While 

is 

not 
the 

-1 

The  option  would  be 
reducing 
in 
effective 

111 

 
 
 
Problems 6: Paper-based communication between courts is time-consuming and costly, and  

7: Legal barriers to the acceptance of electronic (digital) evidence produced or stored in another Member State 

Option 
authorities/courts 
under  the  Regulation 
to  use  certified  e-
mails  (furnished  with 
qualified 
e-
signatures)  for  their 
communications  and 
exchange 
the 
documents. 

of 

Effectiveness 
communication, 
including 
related  costs  for  postage  or 
printing.  This  could  speed 
and 
communication 
up 
judicial 
efficiency 
proceedings 
the 
Regulation.  

under 

of 

As  a  result, 
the  overall 
duration  of  proceedings 
under  the  Regulation  and 
ensuing burdens for citizens 
and  businesses  is  likely  to 
decrease. 

Efficiency 
efficient. 

reported 

While  the  use  of  email 
to  be 
was 
widespread 
among 
courts,  in  particular  for 
informal 
communication,  the  use 
of qualified e-signatures 
is not yet common.  

by 

Thus,  even  if  electronic 
identification 
frameworks, 
such  as 
eIDAS,  are  currently 
the 
developed 
European  Union,  few 
Member States have the 
or 
infrastructures 
experience  in  place  to 
facilitate  qualified  e-
signatures  within  public 
administration  and  the 
judiciary. 

Proportionality 
cases 
the 
in  which 
Regulation  is  applied  only 
constitute  a  small  share  of 
all  cases,  the  courts  would 
have to adapt their existing 
IT 
and 
systems 
communication  procedures 
to  comply  with  the  option. 
greatly 
would 
This 
for 
the 
influence 
for 
solutions 
national 
overall 
communication 
within the judicial system. 

room 

Thus,  although  the  option 
would  effectively  address 
the  problem  identified  for 
the  procedures  under  the 
Regulation,  it  would  go 
beyond  what  is  needed  to 
address it. 

the 

costs 

Thus, 
to 
implement  the  technical 
infrastructure  in  courts 
are likely to be high and 

112 

Rating  Conclusion 
paper-based 
communication 
and 
thereby  help  to  speed 
legal  proceedings. 
up 
This  could 
to 
decreasing  burdens  for 
citizens and businesses.  

lead 

At  the  same  time,  the 
only 
option 
is 
efficient. 
moderately 
to 
The  one-off  cost 
implement 
an 
system 
interconnected 
electronic 
facilitating 
every 
at 
signatures 
competent 
is 
court 
high, 
considered 
the 
compared 
number  of  cases 
in 
which  the  regulation  is 
applied. 

to 

Likewise,  the  option  is 
not 
considered 
proportionate, as it goes 
beyond  what  is  needed 
to  address  the  problem 
the  costs  are 
while 

 
 
 
Problems 6: Paper-based communication between courts is time-consuming and costly, and  

7: Legal barriers to the acceptance of electronic (digital) evidence produced or stored in another Member State 

Option 

Effectiveness 

Proportionality 

Rating  Conclusion 

borne  by  the  Member 
States alone.  

Efficiency 
would  be  borne  by  the 
Member States. Benefits 
for 
include 
courts 
network 
decentralised 
of  identification  among 
legal professionals. 

Preferred option 

Option 6.2 is the preferred option, as it would achieve the highest benefits. While it would also entail additional costs, 
these  would  be  acceptable,  considering  also  that  the  tool  could  be  used  for  other  EU  instruments,  too.  By  laying  the 
foundation for the acceptance of evidence in electronic forms, the option addresses two possible delays in cross-border 
ToE – namely communication itself and delays from the actual transmission of evidence obtained.  

It is important to note, however, that this assessment depends on the further clarification on financing the e-tool. Given 
the possible EU-wide application in other contexts, financing at the EU-level could be a preferred way to implement the 
system and increase acceptance of Member States and the inclination to actively support the development. 

113 

 
 
 
1.1.6  Options addressing the delays in the execution of a request by the requested court 

Assessment of options for problem 8 “delays in the execution of a request by the 
requested court” 

Problem 8: Delays in the execution of a request by the requested court 

Option 

Effectiveness  Efficiency 

Proportionali
ty 

Ratin
g 

Conclusion 

8.1 
Best 
practice  guide 
addressed 
to 
courts on how 
to 
ensure 
speedy 
handling 
cases 

of 

The  option  is 
proportionate.  

+1 

The 
option 
does  not  have 
any 
binding 
effect.  Hence, 
option 
the 
does  not  go 
beyond  what 
is necessary to 
the 
address 
and 
problem 
type  of 
the 
is  as 
action 
simple 
as 
possible. 
Furthermore, 
type  of 
this 
action 
could 
not  be  taken 
by 
individual 
Member 
States. Finally, 
the  costs  are 
minimal.  This 
said, 
the 
option  would 
fully 
not 
the 
address 
problem. 

option 

This 
could 
potentially 
help  to  reduce 
and 
delays 
costs 
for 
public 
administration
s,  businesses 
and  citizens  to 
small 
a 
degree. 
The 
exact extent of 
the 
benefits 
be 
would 
dependent  on 
the  content  of 
and  uptake  of 
the 
information  in 
this 
practice 
guide. 

Courts  may 
find 
useful 
tips  on  how 
case  handling 
be 
can 
improved 
or 
may  use  it  to 
clarify  certain 
aspects  of  the 
procedure.  

Nevertheless, 
positive 
the 
effects 
are 
expected  to  be 
is 
limited.  It 
to 
not  clear 
extent 
what 
delays 
are 
actually  based 

The efficiency 
of  this  option 
would 
be 
medium.  

While 
the 
option  would 
some 
have 
limited 
positive 
impacts 
in 
achieving  the 
objectives, the 
costs  for  this 
option  would 
also  be  rather 
low.  It  would 
be  necessary 
to  come  to  an 
agreement  on 
how 
the 
guidance 
be 
should 
phrased 
and 
what  type  of 
best  practices 
would 
be 
presented. 
This 
could, 
for  example, 
done 
be 
within 
the 
EJN  network, 
possibly in the 
context 
of 
existing 
meetings.  

actual 

The 
drafting, 
visualisation, 
layout  etc.  of 
practice 
the 

114 

The  option 
would  have 
a 
small 
positive 
impact 
low costs. 

at 

Some 
limited 
positive 
benefits  are 
expected  in 
relation 
to 
the 
objectives 
of  reducing 
delays  and 
costs 
for 
stakeholders 
involved 
in 
the  cases  as 
part 
of 
which 
evidence 
is 
taken  across 
borders. The 
exact  extent 
of 
the 
benefits 
would 
dependent 
on 
the 
content  and 
of 
uptake 
the 
information 
in  the  new 
practice 
guide. 

be 

costs 

The 
for 
procuring 

 
 
Conclusion 

the  drafting 
this 
of 
practice 
guide  would 
be 
likely 
between 
15,000  and 
30,000 
Euro.  

The  option 
is 
proportionat
e, but would 
fully 
not 
address 
the 
problem  at 
hand. 

Problem 8: Delays in the execution of a request by the requested court 

Option 

Effectiveness  Efficiency 

Proportionali
ty 

Ratin
g 

on  a  lack  of 
knowledge  of 
appropriate 
procedures. 
Based  on  the 
evidence 
it 
collected 
rather 
seems 
that  delays  are 
based 
either 
the 
on 
situation 
of 
the  case  (e.g. 
sometimes 
it 
takes longer to 
an 
obtain 
expert  opinion 
or  a  witness 
cannot 
be 
found)  or  on a 
lack 
of 
resources.  

guide 
could 
be procured as 
a 
contract. 
Depending  on 
the  extent  to 
which 
the 
EJN is able to 
prepare 
the 
substance  of 
guide 
the 
their 
within 
meetings 
(or 
additional 
if 
research  has 
to  be  done  by 
the 
contractor), 
this could cost 
between 
and 
15,000 
30,000  Euro. 
The 
more 
research 
would need to 
be done by the 
contractor, the 
more 
expensive  the 
development 
of the practice 
guide  would 
be.  

If 
printed 
material,  e.g. 
flyers, 
brochures  etc. 
would need to 
prepared 
be 
(e.g. 
for 
training 
sessions  or  as 
take-away  at 
conferences), 
additional 
printing  costs 
be 
would 

115 

 
 
Problem 8: Delays in the execution of a request by the requested court 

Option 

Effectiveness  Efficiency 

Proportionali
ty 

Ratin
g 

Conclusion 

incurred.  The 
costs 
exact 
depend  on  the 
number 
of 
their 
prints, 
paper 
and 
print  quality, 
the  number  of 
pages  etc.  but 
range 
could 
from  1.0 
to 
5.0  Euro  per 
print. 

If one practice 
was 
guide 
per 
printed 
court 
(i.e. 
6,000  in  the 
this 
EU), 
could  amount 
to 
30,000 
Euro. 

The efficiency 
of this options 
is  moderate to 
high, 
depending  on 
the 
time-
horizon  of  the 
assessment. 

initial, 

The 
off-off 
investment 
costs  for  the 
system  can  be 
regarded 
as 
high. 
However, 
apart 
maintenance 
and  updates, 

from 

The  option 
would  help 
reduce 
to 
at 
delays 
moderate  to 
high costs.  

is 

It 
considered 
to 
be 
proportionat
e.  

+2 

The  option  is 
proportionate, 
but 
final 
a 
assessment 
would  depend 
on 
the 
clarification 
on 
financing 
the tool.56  

the 
of 

The  scope  of 
the initiative is 
limited 
to 
what  Member 
could 
States 
not 
achieve 
themselves, 
implementing 
a  new  EU-

option 
The 
would  help  to 
reduce delays.  

By 
introducing  an 
electronic 
communicatio
n system to be 
used  as  a  rule 
for 
requests 
and 
communicatio
n, 
time 
relation 
sending 
requests 
other 
communicatio
ns  via  post 

in 
to 

and 

for 

and 

8.2  (a)  CEF 
eDelivery 
(eCodex) 
should  be  the 
default 
channel 
electronic 
communicati
on 
document 
exchanges 
between 
the 
agencies/cour
ts  designated 
under 
Regulation 
(EC) 
1206/2001 (as 
the 
well  as 

56 It is assumed that development would be largely carried out using EU funds, similar to the eJustice portal 
or eCodex project. 

116 

 
 
                                                            
Problem 8: Delays in the execution of a request by the requested court 

Ratin
g 

Conclusion 

Proportionali
ty 
wide 
tool.  It 
does  not  go 
beyond  what 
to 
is  needed 
the 
address 
problem,  as  it 
only  concerns 
communicatio
n  under 
Regulation. 

the 

However, 
the 
introduction of 
the  tool  limits 
the  room  for 
national 
decisions 
how 
structure 
internal 
procedures 
some extent. 

on 
to 

to 

Overall,  there 
a 
is 
justification 
for the option.  

Option 

Effectiveness  Efficiency 

Service 
Regulation). 
E-
communicati
should 
on 
replace,  as  a 
general  rule, 
paper 
workflows. 

+ 

8.2 
(b) 
Implementing 
technical 
measures 
ensuring 
automatic 
and/or 
manual 
logging of the 
steps  of 
the 
workflow. 

(e.g.  around  5 
working  days 
per 
request, 
depending  on 
the  number  of 
communicatio
ns 
channels 
used).  

and 

In 
addition, 
the  possibility 
the 
log 
to 
the 
steps  of 
work 
flow 
would 
increase 
transparency 
for 
requesting 
that 
court 
could 
check 
the  status  of 
the request.  

the 

might 
the 
of 

This 
reduce 
number 
status 
requests, 
which 
currently 
sometimes 
sent 
even 
before  the  90 
day  period  is 
over.  

are 

addition, 
tool 

In 
such  a 
would 
facilitate 
the 
preparation  of 
statistics,  e.g. 
to 
check 
which  courts 
and/or 
Member 

the  marginal 
cost  for  each 
instance 
of 
communicatio
n is  negligible 
and 
faster 
than the use of 
postal services 
(likely  to  be 
used under the 
baseline 
scenario). 
Using  postal 
the 
services, 
are 
costs 
at 
incurred 
every  instance 
of 
communicatio
n,  and  likely 
to  increase  in 
line  with  the 
number 
of 
cross-border 
cases.  Thus, 
and 
costs 
of 
benefits 
option 
this 
to  be 
have 
have 
to  be 
weighted.  

the 
Whereas 
costs 
for 
postal services 
incurred 
are 
by  courts 
in 
the  Member 
the 
States, 
new 
portal 
would  be  to  a 
extent 
large 
be  developed 
at 
the  EU-
level.  It  needs 
to  be  clarified 
further,  who 

117 

 
 
Problem 8: Delays in the execution of a request by the requested court 

Option 

Effectiveness  Efficiency 

Proportionali
ty 

Ratin
g 

Conclusion 

have 

States 
systematic 
in 
difficulties 
the 
meetings 
It 
deadlines. 
would  then  be 
possible 
to 
target  support, 
e.g. training.   

finances 
the 
its 
tool  and 
maintenance.  

Given  the  use 
existing 
of 
portals 
and 
depending  on 
the 
complexity  of 
the  tool,  the 
development 
will 
costs 
likely 
to  be 
lower than the 
development 
of  the  eCodex 
itself 
portal 
(24 
Mio. 
EUR).  In  any 
case,  costs  at 
the 
national 
level  may  be 
for 
expected 
staff 
training 
and  adapting 
of institutional 
routines to use 
the new tool.  

be 

It is important 
to  note,  that 
the  cost 
in 
operation 
would 
largely 
determined  by 
the  extent,  to 
which the tool 
would 
be 
integrated into 
existing 
systems.  At 
the 
national 
level, 
efficiency 
gains  may  be 
if 
reduced, 

118 

 
 
Problem 8: Delays in the execution of a request by the requested court 

Option 

Effectiveness  Efficiency 

Proportionali
ty 

Ratin
g 

Conclusion 

existing 
IT 
systems  need 
to  be  adapted 
time 
or 
the 
to 
required 
transfer 
communicatio
n  between  the 
newly 
established 
tool  and  any 
existing 
national tools.  

It  is  assumed 
that  the  tool 
could  also  be 
used  for  other 
EU 
instruments 
(such  as 
Service 
Regulation), 
which 
positive 
implications 
for 
efficiency.  

has 

the 

the 

Preferred 
option 

Option  8.2  is  the  preferred  option,  as  it  would  achieve  the  highest 
benefits.  While  it  would  also  entail  additional  costs,  these  would  be 
acceptable,  considering  also  that  the  tool  could  be  used  for  other  EU 
instruments, too.  

Source: Deloitte 

1.1.7  Options addressing the limited uptake of direct taking of evidence 

Assessment of options for problem 9 “limited uptake of direct taking of evidence” 

Problem: 9: Limited uptake of direct taking of evidence 

Option 

Effectivenes
s 

Efficiency 

Proportionalit
y 

Ratin
g 

Conclusion 

9.1 Reshape 
the  uniform 
procedure 
for 

direct 

This  option 
would 
reduce 
delays 

in 

The  efficiency 
of this option is 
medium.  

While  it  would 

0 

Proportionality 
of this option is 
questionable, 
as evidence did 

option 

This 
would 
increase 
effectiveness, 

119 

 
 
Problem: 9: Limited uptake of direct taking of evidence 

Option 

of 

taking 
evidence 
replacing 
the 
requirement 
of 
individual 
prior 
authorisatio
n  with  a 
system 
based 
automatic 
authorisatio
law 
n  by 
the 
(and 
option 
of 
opposing  it 
within  a  set 
timeframe)

on 

Ratin
g 

Conclusion 

as  it  has  the 
to 
potential 
reduce delays. 
The 
exact 
benefits 
depend on the 
time frame set 
for 
the 
refusal.  

as 

and 
cost 

There  would 
be  low  costs 
the 
for 
legislative 
drafting 
well 
awareness 
raising 
small 
savings 
relating  to  the 
application  of 
the 
new 
option, 
including 
costs  relating 
resources, 
to 
and 
printing 
postage.  

Proportionalit
this 
of 
y 
option may be 
questioned.  

Proportionalit
y 
not  point 
to 
any  significant 
difficulties 
relating  to  the 
requirement  of 
authorisation.  

option 
The 
would 
bring 
small  benefits 
and  would  still 
provide 
Member  States 
the  option  of 
refusing 
requests. 
Nevertheless, 
their possibility 
to 
refuse 
requests  would 
be  reduced,  as 
they  would  not 
have the option 
refusing 
of 
requests  once 
the  time  frame 
has passed.  

Effectivenes
s 
cross-border 
proceedings 
which  exist 
due 
the 
to 
time  it  takes 
to 
grant 
authorisation 
for the direct 
of 
taking 
evidence.  

actual 
The 
to 
extent 
which delays 
could 
be 
reduced 
depends  on 
the 
time-
frame  given 
object 
to 
authorisation
.  Currently, 
time 
the 
for 
frame 
accepting 
requests 
is 
30  days.  If 
the new time 
frame 
for 
opposing 
would be the 
same, 
the 
effects 
would 
limited. 
Cases  would 
then  only  be 
faster  to  the 
extent 
Member 
States 
currently  do 
not adhere to 
time 
the 
frame. 
In 
a 
case  of 
shorter  time 

be 

Efficiency 

bring 
some 
limited positive 
benefits, 
there 
would  also  be 
cost savings.  

for 
Currently, 
every 
request 
relating  to  the 
direct  taking  of 
evidence, 
a 
reply  has  to  be 
(either 
sent 
including 
the 
acceptance  or 
refusal). This is 
sent 
normally 
post 
by 
in 
(although 
urgent 
some 
cases  informal 
notices are sent 
via  email  or 
fax). Under this 
the 
option, 
number 
of 
correspondence
be 
s  would 
to 
decreased 
the 
only 
of 
number 
refusals, 
leading to costs 
of 
savings 
costs 
printing 
and postage.  

These 
cost 
savings  would 
not 
be 
significant,  as 
the 
current 
of 
number 
requests is very 
small.  

The 
needed 

resources 
by 

120 

 
 
 
 
Problem: 9: Limited uptake of direct taking of evidence 

Proportionalit
y 

Ratin
g 

Conclusion 

Option 

Effectivenes
s 
frame,  e.g.  2 
weeks, 
delays  could 
be reduced.  

In  addition, 
it  is  possible 
that 
the 
direct  taking 
of  evidence 
would 
be 
used  more 
frequently, 
the 
as 
burden 
/ 
waiting  time 
be 
would 
lower 
/ 
shorter.  

Efficiency 

national 
authorising 
institutions 
(central  bodies 
courts) 
or 
would 
not 
change 
significantly, as 
request 
every 
still 
would 
need 
be 
to 
checked.  

Low  additional 
costs  would  be 
incurred 
in 
relation  to  the 
legislative 
drafting 
awareness 
raising.  

and 

the 

same 
legal 

At 
time, 
professionals 
(e.g. 
lawyers 
and  court  staff) 
would  need  to 
familiarise 
themselves 
with 
the  new 
These 
rules. 
costs  are  not 
expected  to  be 
significant  and 
would  not  be 
to 
passed  on 
citizens 
/ 
businesses,  as 
every 
legal 
professional 
would 
only 
little 
spend 
time  (e.g.  half 
an hour) once.  

Such  costs  are 
as 
regarded 

121 

 
 
Problem: 9: Limited uptake of direct taking of evidence 

Option 

Effectivenes
s 

Efficiency 

Proportionalit
y 

Ratin
g 

Conclusion 

out-of-pocket 
or 
costs 
business 
as 
usual  and  not 
additional 
as 
costs  compared 
to  the  baseline 
scenario. 

The  efficiency 
of this option is 
high.  

It  would  bring 
positive 
and 
benefits 
would 
there 
also  be  cost 
savings 
for 
public 
administrations 
requesting 
in 
and 
requested 
Member States.  

Requesting 
Member  States 
would  have  to 
spend  less  time 
on 
requests 
(and  potential 
in 
inquiries 
cases of lack of 
reply) 
and 
could  directly 
take evidence.  

There  would 
not  need  to  be 
checking 
any 
of  the  requests, 
officials 
thus 
would 
spend 
less  time  in  the 
requested 
Member State.  

-2 

addition, 

The  option  is 
not 
fully 
proportional, as 
did 
evidence 
not  point 
to 
any  significant 
difficulties 
relating  to  the 
requirement  of 
authorisation. 
In 
removing 
authorisation 
completely 
further 
goes 
is 
than  what 
needed 
and 
would  mean 
that  Member 
States  would 
no  longer  have 
the  option  of 
opposing 
to 
certain  actions 
carried 
being 
their 
out  on 
territory.  

9.2 Reshape 
the  uniform 
procedure 
direct 
of 
taking 
of 
evidence  by 
removing 
the 
requirement 
of 
authorisatio
n 

This  option 
would 
reduce 
in 
delays 
cross-border 
proceedings 
which  exist 
the 
to 
due 
time  it  takes 
to 
grant 
authorisation 
for the direct 
taking 
of 
evidence.  

time-
for 

Currently, 
the 
frame 
accepting 
requests 
is 
30 
days. 
Thus, 
this 
could 
time 
be  saved,  as 
courts  could 
take 
evidence 
directly 
without 
to 
having 
wait  for  the 
acceptance 
of 
requested 
Member 
State.  

the 

In  addition, 
it  is  possible 

In 
postage 

addition, 
and 

122 

option 
have 

This 
would 
positive 
effects 
relating  to  the 
achievement 
of 
the 
to 
objectives 
reduce  costs 
and  delays.  It 
score 
would 
positively  on 
efficiency,  as 
the 
benefits 
would  come 
at  low  costs 
or  even  cost 
savings 
(relating 
resources, 
printing  costs, 
postage).  

to 

Nevertheless, 
option 
the 
goes 
further 
than  what  is 
needed, 
in 
particular  as 
Member 
States  would 
longer 
no 
the 
have 
of 
option 
opposing 
to 
certain 
actions  being 
carried  out  on 
their territory. 

 
 
Problem: 9: Limited uptake of direct taking of evidence 

Proportionalit
y 

Ratin
g 

Conclusion 

Option 

Effectivenes
s 
that 
the 
direct  taking 
of  evidence 
would 
be 
used  more 
frequently, 
the 
as 
burden 
/ 
waiting  time 
be 
would 
lower 
/ 
shorter.  

Efficiency 

printing 
costs 
would be saved 
the 
equal 
to 
number 
of 
requests. 
for 
Currently, 
every 
request 
relating  to  the 
direct  taking  of 
evidence, 
a 
reply  has  to  be 
sent 
(either 
the 
including 
acceptance  or 
refusal). This is 
sent 
normally 
post 
by 
in 
(although 
some 
urgent 
cases  informal 
notices are sent 
via  Email  or 
fax).   

and 

Additional 
costs  would  be 
incurred 
in 
relation  to  the 
legislative 
drafting 
awareness 
raising  as  well 
as 
legal 
professionals to 
familiarise 
themselves 
with 
rules 
argumentation 
for 9.1).  

the  new 
(cf. 

for 

Preferred 
option 

The status quo is the preferred option. While option 9.1 would also bring 
some positive effects, the effects are limited and depend on the time frame 
set for refusals. In addition, there would also be costs and proportionality 
of the option may be questioned. On this basis, the overall effects would 
not be better compared to the baseline scenario.  

123 

 
 
124 

 
 
 
 
 
ANNEX 6: ASSESSMENT OF IMPACTS OF BASELINE SCENARIO 

1. 

Effectiveness 

Under  effectiveness,  the  achievement  of  the  specific  objectives  of  the  Regulation  is 
assessed. 

It  has  been  estimated  that  the  number  of  cases  in  which  Regulation  (EC)  1206/2001  is 
applied will increase by around 30% between 2017 and 2030.57 This increase is mainly 
due to the following factors (which are interconnected):  

  Increased cross-border activity of businesses and citizens / consumers; and 
  Increased knowledge of the Regulation by legal professionals58.  

However, compared to the overall number of cross-border cases, it is expected that the 
Regulation will continue  to  play a minor role. While it is possible that there is  a slight 
increase in the share of cross-border cases in which the Regulation will be applied, it is 
not  expected  that  the  share  will  be  larger  than  5%.  Thus,  although  the  total  number  of 
cases in which the Regulation is applied will increase by 28%, the share of cross-border 
cases will not rise significantly.  

At the same time, the challenges identified in relation to the application of the Regulation 
are  likely  to  continue  to  exist.  On  this  basis,  problems  for  citizens  and  businesses  will 
persist,  which  limits  the  achievement  of  the  policy  objectives.  In  particular,  there  will 
still  be  uncertainty  in  relation  to  when  to  apply  the  Regulation  and  concerning  certain 
concepts. Delays and costs (e.g. based on failure to keep the stipulated time limits or to 
choose the most appropriate means to take evidence) are expected to remain at an equal 
level per case and increase at an overall level in line with the overall increase of cases. 

1.1 

To reduce legal uncertainty 

Without any action, the achievement of this objective would continue to be limited by the 
lack of clarity identified in relation the application of the Regulation.  

At  the  operational  level,  legal  uncertainty  can  be  caused  by  diverging interpretations  if 
and  when  the  Regulation  or  other  means  in  national  law  may  be  used,  as  well  as 
diverging  interpretation  of  “courts”  under  the  Regulation  by  national  authorities.  In 
practice,  there  is  also  a  diverging  understanding  of  what  kind  of  judicial  actions 
constitute “taking of evidence” under the Regulation. 

57 From 164,000 cases in 2017 up to around 214,000 in 2030.  
58  This  may  also  have  a  slight  positive  impact  on  the  development  of  the  problems,  which  is  explained 

further below.  

125 

 
 
 
 
 
                                                            
Without any action, CJEU case law will continue to be relevant to take into account for 
the interpretation of the Regulation. Currently, a number of CJEU judgments have been 
rendered to clarify the relationship of the Regulation to national law. While the existing 
case  law  does  not  address  all  unclear  aspects  identified,  it  is  possible  that  additional 
decisions would be givne.  

To further improve the efficiency and speed of judicial proceedings and reduce 

1.2 
the burden for citizens and businesses 

Under  the  baseline  scenario,  the  Regulation  would  continue  to  have  a  limited  positive 
effect on the efficiency and speed of judicial proceedings. Delays based on uncertainties 
and practical challenges would persist: 

  Taking evidence via a competent court in another Member State is perceived to be a 

slow method, including because the time limits are often not kept; and 

  Videoconferencing systems are not always available in all courts, which can delay the 

process to take evidence. 

However,  due  to  the  dynamically  increasing  number  of  legal  proceedings  in  which 
Regulation  (EC)  1206/2001  is  expected  to  be  applied  per  year  until  203059,  the 
challenges are expected to affect an increasingly large amount of citizens/consumers and 
businesses. Thus, costs and delays associated with the application of the Regulation are 
expected to increase over time. 

Factors that currently lead to undue delays are presented in the following table.  

Factors that lead to delays and examples of their effect  

Factor 

the 

the 

time 

limits  of 

to  respect 

Failure 
Regulation 
Not using the means to conduct a hearing that are 
most  suitable  for  each  hearing  under  EU  and 
domestic  procedural  law  and  limited  uptake  of 
the direct taking of evidence 
Limited use of electronic solutions for the taking 
of evidence, e.g. conducting hearings via VC 
Difficulties relating to the coordination of taking 
of evidence (e.g. organising hearings in person or 
via videoconferencing) 
Use  of  paper-based  communication  outside  of 
hearings 
Source: Deloitte 

the 

Effects  on 
proceedings 
2 weeks to 9 months 

length  of 

the 

Up to 2 months (e.g. if the procedure 
via  the  competent  court  is  used 
although  direct  taking  of  evidence 
via  videoconferencing  could  also  be 
used) 

1 week or longer 

Around 8 days on average 

59 As explained in the introduction to this section.  

126 

 
 
 
                                                            
These factors are likely to continue to cause delays also until 2030.  

Overall,  small  improvements  are  possible  based  on  an  increased  number  of  cases  in 
which  the  Regulation  is  expected  to  be  applied.  On  this  basis,  it  is  possible  that  legal 
professionals gain more practice in applying the Regulation.  

In  addition,  it  is  possible  that  electronic  means  for  the  communication  between  courts 
and the taking of evidence (e.g. videoconferencing) would slightly increase based on an 
increased overall use of electronic means for communication. It can be expected that the 
availability and  quality  of  videoconferencing  will improve,  which  may  encourage  legal 
professionals  to  use  it  in  civil  legal  proceedings.  Communication  may  also  slowly 
become  less  paper-based,  as  several  Member  States  currently  have  ongoing  projects  to 
find  solutions  for  electronic  communications  in  the  judicial  sector.  However,  it  is  not 
clear  to  what  extent  (new)  videoconferencing  and/or  communication  systems  will  be 
interoperable across Member States, as these developments are largely separate.  

To improve access to justice and the protection of the procedural rights of parties 

1.3 
to the proceedings 

The Regulation currently achieves this objective to a large extent and would continue to 
do so. Limitations are mainly due to the fact that the Regulation is only rarely applied. 

More  specifically,  the  Regulation  contributes  to  making  sure  that  all  relevant  evidence 
necessary  for  the  claim  and/or  defence  may  be  gathered  in  an  efficient  way,  by 
introducing  common  channels  that  may  be  used  for  this  purpose.  It  also  facilitates  the 
participation of the parties in the taking of evidence (Article 11). On this basis, the right 
of access to justice and the right to be heard are strengthened in the cases in which the 
Regulation is applied.  

However, while the overall  number of cases in which the Regulation will be applied is 
expected  to  increase  by  28%,  it  can  be  expected  that  the  share  of  cases  in  which  the 
Regulation  is  applied  compared  to  the  overall  number  of  cross-border  cases  will  not 
increase beyond 5% until 2030. On this basis, the number of citizens benefitting from the 
Regulation will increase. Nevertheless, compared to the overall number of cross-border 
cases, the impact of the Regulation will remain limited based on the small proportion of 
cases  in  which  it  is  applied.  Thus,  the  Regulation  only  contributes  and  is  expected  to 
continue to contribute to the protection of the rights of citizens and businesses in a small 
proportion of cases. 

Furthermore, the achievement of this objective is impaired by potential costs and delays 
arising from difficulties relating to the design of the Regulation and its application. On 
this basis, it may be more cumbersome for businesses and citizens to make use of these 
rights when the Regulation is applied rather than methods of national procedural law.  

127 

 
 
 
Finally, the share of cases in which videoconferencing is used and the conditions under 
which  it  is  used  also  impacts  on  this  objective.  While  physical  hearings  can  guarantee 
that the witness is (at least physically) free to give the testimony, it is more  difficult to 
ensure this in the context of videoconferencing.  

2. 

Efficiency, incl. impacts on national judicial systems 

The assessment criterion efficiency relates to the relationship between costs and benefits 
– neither the absolute costs nor benefits. This means that efficiency concerns the extent to 
which the objectives of the Regulation are achieved at a reasonable cost. 

At  the  moment,  the  application  of  Regulation  (EC)  1206/2001  does  not  require  capital 
expenditures  (CAPEX)  and  operational  expenditures  (OPEX)  by  public  authorities  that 
are significantly higher than those related to cross-border cases that are being dealt with 
under domestic procedural law or domestic legal proceedings. This is expected to remain 
valid in the baseline scenario. 

Since  the  communication  between  public  authorities  under  the  Regulation  is  largely 
paper-based  or  conducted  via  email,  and  VC  is  only  used  to  a  limited  extent, it  can  be 
argued  that  public  authorities  do  not  have  to  invest  into  a  dedicated  technical 
infrastructure  by  means  of  which  legal  proceedings  under  the  Regulation  would  be 
handled. 

Moreover,  due  to  its  non-mandatory  nature  and  its  limited  practical  application,  the 
labour  costs  that  can  be  associated  with  the  Regulation  are  insignificant  in  view  of  the 
labour  costs  for  cross-border  cases  that  are  being  dealt  with  under  domestic  procedural 
law (left alone the costs related to purely domestic legal proceedings). At the operational 
level,  central  bodies’  staff  is  often  not  only  responsible  for  cross-border  proceedings 
under the Regulation but also for proceedings under the Hague Convention, other matters 
of  judicial  cooperation  within  the  EU,  as  well  as  purely  domestic  legal  proceedings. 
Thus,  the  workload  related  to  the  Regulation  is  expected  to  concern  only  a  fraction  of 
central bodies’ staff in the Member States. 

The  adoption  and  implementation  of  the  Regulation  provides  stakeholders  with  the 
possibility  to  use  an  EU  legal  instrument  to  take  evidence  across  borders  in  legal 
proceedings in civil and commercial matters. This is considered to be a benefit as such. 
In particular the possibility to directly take evidence in other Member States under Art. 
17 of the Regulation could be a benefit if were applied more frequently. 

According to the evaluation results and the problem assessment, at present the Regulation 
only makes a limited contribution to enhancing the overall efficiency of the processes to 
take evidence across borders, notably due to its limited use (it has been estimated that the 
Regulation  is  currently applied  in max.  5%  of  the  cross-border  cases).  This  situation  is 
not expected to change over the next years. The Regulation is expected to continue to be 

128 

 
 
 
 
applied only in a minority of the legal proceedings in cross-border civil and commercial 
matters.  It  is  estimated  that  the  Regulation  would  be  applied  in  around  185,000  legal 
proceedings per year on average across the EU until 2030 in the baseline scenario. 

Since the application of the Regulation is not mandatory in the baseline scenario, the use 
of domestic means to take evidence across borders is expected to guarantee a reasonably 
efficient overall system to take evidence across borders.  

There  is,  however,  room  for  improvement  with  regard  to  the  efficiency  of  some  of  the 
processes  that  the  Regulation  did  not  sufficiently  address  yet.  For  the  largest  part,  this 
concerns  the  speed  of  procedures  in  order  to  avoid  undue  delays  for  businesses  and 
citizens. The main challenges identified in the evaluation and the problem assessment in 
this regard are expected to remain in the baseline scenario: 

  Taking evidence via a competent court in another Member State is perceived to be a 

slow method, including because the time limits are often not kept; and 

  Videoconferencing systems are not always available in all courts, which can delay the 

process to take evidence, result in additional travel etc. 

These  challenges  cause  undue  delays  in  the  legal  proceedings,  which  are  expected  to 
persist in the baseline scenario. 

For instance, taking of evidence across borders under the Regulation may often take as 
long as six months in practice instead of the 90 days stipulated in the Regulation. While 
parts of this problem e.g. may have to do with practical difficulties to organise hearings, 
differences between the national procedural laws of the Member States are considered to 
be an important contributing factor to inefficient proceedings, as well as the use of paper-
based  communication  by  Member  States.  Indeed,  while  transmission  per  email  or  via 
other  electronic  systems  is  instant,  sending  documents  across  borders  by  post  can  be 
estimated  to  take  between  one  and  three  working  days  for  every  submission.  Costs  for 
sending information by post will also continue to be incurred by the relevant authorities 
in the baseline scenario. 

Moreover,  the  take-up  of  VC  as  a  solution  to  find  the  right  balance  between  the 
challenges to organise a physical hearing and being able to safeguard the freedom of the 
witness  testimony  leaves  some  room  for  improvement.  Although  Member  States  are 
expected  to  increase  the  take-up  of  VC  in  the  baseline  scenario  due  to  increased 
experience with and availability of the necessary equipment, this is expected to continue 
to be an issue in the baseline scenario. 

As  a  consequence,  legal  proceedings  could  be  more  costly  and  could  also  take  longer 
than they could if the take-up of VC would be higher. Legal uncertainty with regard to 
some  of  the  concepts  of  the  Regulation  also  has  a  negative  impact  on  the  speed  of  the 
procedures.  

129 

 
 
Due  to  the  dynamically  increasing  number  of  legal  proceedings  in  which  Regulation 
(EC) 1206/2001 is expected to be applied per year until 2030, the challenges are expected 
to affect an increasingly large amount of citizens and businesses. 

From  a  more  narrow  perspective,  in  the  baseline  scenario  the  Regulation  is  therefore 
expected to increase the efficiency of legal proceedings as taking of evidence is governed 
by  a  flexible  regime  under  which  the  most  appropriate  means  to  take  evidence  in  each 
specific legal proceedings can be used. Some room for improvement, however, remains 
e.g. with regard to the share in which the Regulation will be used in the future. Although 
this  does  not  necessarily  mean  that  other  cross-border  legal  proceedings  in  which  the 
Regulation will not be applied are expected to be inefficient, the non-mandatory nature 
will  arguably  contribute  to  legal  uncertainty  for  public  authorities,  legal  professionals, 
citizens, and businesses. 

3. 

Coherence  

The  evaluation  found  that  the  Regulation  is  largely  coherent  internally, as  well  as with 
other EU policies, which have similar objectives, and national law.  

Only few issues relating to the coherence of the Regulation with other legal instruments 
and  internally  have  been  identified  as  part  of  the  present  assignment.  A  small 
inconsistency  in  relation  to  the  internal  coherence  was  identified,  notably  in  relation  to 
the use of the term ‘request’.60 In addition, certain overlaps may exist with the Brussels 
IIa and Maintenance Regulations, notably as concerns the tasks of the Central Bodies to 
collect information concerning the situation of the child. With respect to Brussels IIa, this 
has led to a lack of clarity as to whether Regulation (EC) 1206/2001 also applies to such 
situations. These challenges would persist without any action.  

Some of the EU instruments in the field of civil justice have recently been reviewed or 
are  planned  to  be  reviewed  in  the  future.  To  name  a  few  examples,  a  proposal  for  the 
Brussels IIa Regulation is currently under discussion and a new Regulation on property 
regimes  for  registered  partnerships  has  been  adopted  and  will  apply  in  18  Member 
States61 as of 2019.62 It also planned to further strengthen the work of the EJN, e.g. by 

60 Article 2(1) stipulates that the term “requests” in the Regulation refers to requests under Article 1(1)(a), 
i.e.  requests  asking  the  competent  court  in  another  Member  State  to  take  evidence.  Nevertheless, 
Article 4(1) indicates that form I could be used for posing ‘requests’, although form I concerns direct 
taking of evidence. On this basis, it may not be entirely clear which requests are concerned by the rules 
laid  down  in  Articles  10  ff.  In  addition,  the  term  “request”  is  being  used  with  regard  to  the  direct 
taking of evidence in Article 17. 

61  Belgium,  Bulgaria,  the  Czech  Republic,  Germany,  Greece,  Spain,  France,  Croatia,  Italy,  Cyprus, 

Luxembourg, Malta, the Netherlands, Austria, Portugal, Slovenia, Finland and Sweden. 

62 Council Regulation (EU) 2016/1104 of 24 June 2016 implementing enhanced cooperation in the area of 
jurisdiction, applicable law and the recognition and enforcement of decisions in matters of the property 
consequences of registered partnerships, OJ L183, 8.7.2016, p. 30.  

130 

 
 
 
 
                                                            
increasing visibility and resources, which may have positive effects on the application of 
the Regulation.63 

4. 

Impacts on fundamental rights and the protection of personal data 

In particular, three elements may cause stress, costs and delays for citizens,  businesses, 
and  public  administrations  under  the  baseline  scenario.  First,  legal  uncertainty  and 
diverging  understandings  of  what  constitutes  taking  of  evidence  and  the  format  it  may 
take (including electronic formats) is expected to continuously pose problems in practice. 
As  a  result,  legal  professionals  are  not  fully  able  to  choose  an  effective  method  for 
obtaining  evidence  in  cross-border  proceedings  as  a  result.  This  negatively  affects  the 
right to an effective remedy in proceedings64. Second, and related, access to justice may 
not  be  guaranteed  for  some  persons.  For  instance,  where  means  of  distance 
communication  are  not  permitted  or  allowed,  persons  who  are  not  able  or  willing  to 
travel  in  response  to  summons  may  not  be  heard.  Third,  the  evaluation  identified 
problems  based  on  the  completeness  or  quality  of  translation  (e.g.  in  forms  and 
documents) or interpretation. Under the baseline scenario, these problems are expected to 
persist.  

Based  on  the  problem  assessment,  it  is  expected  that  the  abovementioned  burdens  will 
increase  in  line  with  the  expected  increase  of  courts’  case  load  under  Regulation  (EC) 
1206/2001 until 2030. 

Under  the  baseline  scenario,  the  protection  of  personal  data  is  not  considered  to  be 
affected  by  the  current  Regulation.  External  factors  influencing  data  protection  and 
privacy are the General Data Protection Regulation (GDPR) and the growing threats to 
cybersecurity (also  affecting  public authorities). After  entering into force  in  May  2018, 
the  GDPR  is  expected  to  increase  awareness  on  the  issue,  prompt  actions  to  ensure 
security  and  integrity  of  databases  and  swift  reactions  to  breaches  of  privacy  in  the 
judiciary.  However,  data  protection  in  the  judiciary  will  continue  to  be  largely 
determined by national decisions and the integrity of postal services (as the main form of 
communication  under  the  Regulation).  At  the  same  time,  the  incidence  of  attacks  on 
public IT infrastructure has increased in recent years65 and there is no reason to assume 
this  to  change  until  2030.  This  will  also  affect  the  judiciary  in  the  Member  States, 
depending  on  the  proliferation  of  electronic  communication,  court  IT  systems  and  the 
interconnectedness with other IT systems or databases.  

63 Report from the Commission to the European Parliament, the Council and the European Economic and 
Social Committee on the activities of the European Judicial Network in civil and commercial matters, 
COM(2016) 129 final.  

64 Article 47, 2012/C 326/02, Charter of Fundamental Rights of the European Union 
65  Deloitte  (25.07.2016):  Government’s  cyber  challenge.  Protecting  sensitive  data  for  the  public  good. 
Deloitte  Review  issue  19;  Source:  https://www2.deloitte.com/content/dam/insights/us/articles/protecting-
sensitive-data-government-cybersecurity/DR19_GovernmentsCyberChallenge.pdf  

131 

 
 
 
 
                                                            
Overall,  the  issues  identified  above  are  expected  to  remain  and  the  likelihood  of  their 
occurrence  to  increase  in  line  with  the  projected  number  of  cross-border  proceedings 
(applying the Regulation) until 2030. 

5. 

Environmental impacts 

the  use  of  (non-)renewable  resources  due 

Under  the  baseline  scenario,  the  main  environmental  impacts  of  Regulation  (EC) 
1206/2001  concern 
to  paper-based 
communication  and  the  transport  of  letters  (or  parcels)  on  the  one  hand  and  persons 
complying  with  court  summons  on  the  other.  The  environmental  impacts  of  both 
elements are expected to increase under the baseline scenario in line with the projected 
increase  of  cross-border  proceedings  and  ensuing  instances  in  which  the  Regulation  is 
applied. 

A majority of competent courts only allow paper-based communication (for requests and 
submission  of  evidence)  via  post  or  fax.  Only  six  Member  States  accept  requests  via 
email  in  general  and  another  five  Member  States  accept  emails  for  certain  types  of 
requests  or  communications.66  Apart  from  the  negative  impacts  in  terms  of  costs  for 
paper,  toner  or  ink  and  postage  on  efficiency,  paper-based  communication  also  has 
implications for the environment. Presently, forms under the Regulation are often printed 
on  paper  whose  production  requires  renewable  resources  (such  as  wood),  consumes 
water and involves chemicals (e.g. brightening agents). Likewise, the production of toner 
requires (non-renewable) raw materials, e.g. plastic particles and other chemical products 
produced  using  mineral  oil.  Both  paper  and  toner  need  to  be  packaged  and  shipped  to 
end-users, leading to emissions from transport and handling. Both the production and use 
of these materials produce waste which may only be partially recycled (again requiring 
energy).  

According  to  interviewed  stakeholders,  another  important  source  of  waste  are  printing 
errors or duplicate prints due to confusions about which forms have to be used. There are 
no reliable estimates on how often these occur. Nevertheless, it does seem likely that this 
problem  will  remain  or  only  slightly  decrease  under  the  baseline  scenario.  While 
individuals might learn from mistakes, no policy change will also not address the overall 
causes for confusion or technical mistakes. 

Finally,  communication  on  paper  is  usually  transmitted  via  postal  services  under  the 
present Regulation, which:  

  Require further material for processing (e.g. envelopes, wrapping, etc.); 
  Consume additional resources for transport (e.g. fuel in transport); and  
  Produce greenhouse gas emissions (e.g. in transport via trucks and delivery vehicles).  

66 In 24 of 26 Member States, postal service (including couriers) is accepted, whereas 23 Member States 

accept requests via fax machine. 

132 

 
 
 
 
                                                            
The  environmental  impact  of  cross-border  travel  is  expected  to  increase  under  the 
baseline  scenario  as  well.  Currently,  persons  involved in  cross-border  proceedings may 
have  to  travel  to  enable  the  taking  of  evidence.  For  instance,  a  competent  court  may 
summon a person (e.g. witnesses or experts) directly to the trial using the means of the 
Regulation67 or means available under national law. This may occur if means of distance 
communication are not allowed under procedural law or simply not available at courts. In 
these cases, the person in question has to travel across border, e.g. using a car, plane, bus 
or  train.  While  the  distance  to  be  covered  and  the  environmental  impact  of  different 
modes of travel varies, they are a direct result of the summons. 

67 C-170/11 Lippens and others 

133 

 
 
 
 
                                                            
ANNEX 7: ASSESSMENT OF IMPACTS OF POLICY PACKAGE 

1. 

Effectiveness 

Under  the  policy  package,  the  effectiveness  in  achieving  the  policy  objectives  would 
increase in the following ways:  

  Legal uncertainty would be reduced through the foreseen clarifications and additions 
(e.g.  the  definition  of  additional  channels  to  take  evidence  and  clarification  of  the 
concepts  of  court  and  taking  of  evidence)  as  well  as  new  awareness  raising  and 
guidance material.  

  The efficiency of cross-border judicial proceedings would be improved, which would 
lead to a lower burden for citizens and businesses. A number of measures would help 
to  reduce  delays,  including  the  clarifications  identified  above,  the  strengthening  of 
electronic  communication  and  increased  use  of  videoconferencing,  as  well  as 
additional guidance and awareness raising.  

  Access  to  justice  and  the  protection  of  the  rights  of  the  parties  would  be  improved, 
including through the reduction of delays and because the number of cases in which 
the Regulation would be  applied is expected to  increase. Risks  relating to  electronic 
communications and videoconferencing, e.g. relating to confidentiality, would need to 
be addressed.  

The  estimates  on  the  future  application  of  the  Regulation  under  the  policy  package  are 
presented below.  

1.1 

Reducing legal uncertainty 

Under  the  policy  package,  legal  certainty  would  increase,  in  particular  through  the 
following measures:  

  Defining other means of cross-border taking of evidence and stating that they will be 
applied based on national procedural law and including a possibility to take evidence 
using consular channels (option 1.3);  

  Clarifying  the  relation  of  the  Regulation  to  other  EU  measures  that  contain  rules  on 

the taking of evidence (option 1.3);  

  Broadening and clarifying the concepts of “courts” and “taking of evidence” (options 

2.4 and 3.2);  

  Including rules on the acceptance of evidence submitted in digital form (option 6.2); 

and  

  Updating of existing guidance material and awareness raising.  

On this basis, aspects that are currently clarified in the form of case law or not at all will 
be  made  clear  in  the  Regulation.  This  is  expected  to  contribute  to  a  more  equal 
application of the Regulation and will make it easier for legal professionals, citizens and 
businesses to anticipate whether or not the Regulation will be applied.  

134 

 
 
 
 
It  is  also  possible  that  the  definition  of  alternative  means  in  the  Regulation  may  cause 
additional uncertainties. For example, in case of expert judgements to be carried out, it 
may be difficult for legal professionals to decide between the procedure for direct taking 
of evidence under Article 17 and the direct examination of facts by an expert in another 
Member States (as added by option 1.3 following ProRail). While it would be clarified 
that the latter may only be used as long as such examination does not affect the sovereign 
powers of the Member State in which it is to be carried out, it is possible that questions 
may arise as to when that is the case. Nevertheless, such questions may also arise in the 
current situation, where the same rule applies based on the CJEU case law. On this basis, 
the  uncertainty  under  the  policy  package  is  estimated  to  be  smaller  compared  to  the 
baseline scenario, as the rules would be summarised and added directly to the Regulation, 
which will make it easier for legal professionals to understand them.  

In this context, it would be even more useful if it was specifically stated in the Regulation 
that  other  methods,  e.g.  based  on  national  law,  could  be  used  if  they  would  be  more 
efficient than those in the Regulation. This would add clarity and make sure that courts 
can always use the methods most suitable to the case.  

Finally,  with  the  broadened  scope  (based  on  options  1.3,  2.4  and  3.2),  the  Regulation 
would  likely  be  applied  in  a  higher  number  of  cases,  which  may  also  help  to  increase 
knowledge  about  it  and  possibly  increase  the  awareness  of  legal  professionals  about 
alternative methods.  

Further improving the efficiency and speed of judicial proceedings and reduce the 

1.2 
burden for citizens and businesses 

As indicated under the previous heading, there are several options that would contribute 
to decreasing uncertainty. On this basis, delays that exist based on current uncertainties 
could be reduced. For example, there would be time savings for legal professionals who 
might  under  the  baseline  scenario  need  to  check  the  case  law  and  increased  legal 
certainty  for  citizens  and  businesses.  In  addition,  there  would  be  fewer  cases  in  which 
exchanges would be needed to decide whether the Regulation is applicable, e.g. based on 
diverging  interpretations  of  the  concepts  of  “courts”  or  “taking  of  evidence”.  On  this 
basis, delays of e.g. one or several weeks could be avoided, thereby reducing the burden 
for citizens and businesses.  

The  scope  of  the  Regulation  is  slightly  broadened  (options  1.3,  2.4  and  3.2),  possibly 
leading to a higher number of cases in which citizens and businesses can benefit from the 
application of the Regulation. 

The  policy  package  would  help  to  encourage  courts  to  use  videoconferencing  facilities 
for  the  taking  of  evidence  across  borders  by  supporting  funding  and  by  specifically 
mentioning that videoconferencing should be used by default (option 4.2).  

135 

 
 
 
This is expected to lead to an increased availability of videoconferencing facilities and to 
an  increased  awareness  of  legal  professionals  of  this  possibility.  On  this  basis,  there 
could be an increased take-up of direct methods to take evidence across borders under the 
Regulation. This way, the efficiency and speed of judicial proceedings could be increased 
and  the  burden  for  citizens  and  businesses  involved  in  cross-border  proceedings  be 
reduced.  For  example,  it  is  possible  that  courts  who  plan  a  hearing  of  a  person  living 
abroad would currently rather tend to use the procedure via a competent court of another 
Member  State.  This  could  take  around  2-4  months  on  average.  Under  the  new  rules,  a 
higher  number  of  courts 
the  hearing  directly  using 
videoconferencing. Instead of 2-4 months this would typically rather take 3-6 weeks, thus 
saving up to around two months.  

is  expected 

to  conduct 

It would be important to ensure that the new instrument is sufficiently flexible, allowing 
for  exceptions  to  the  general  rule  of  using  videoconferencing.  There  may  be  cases  in 
which the use of videoconferencing would put an additional burden on citizens, including 
potentially  delays  as  well  as  stress.  For  example,  if  the  closest  videoconferencing 
facilities for the witness are far away, e.g. more than one hour’s drive, it may be easier 
for  the  witness  to  come  to  a  court  that  is  closer.  In  addition,  it  may  not  be  suitable  to 
conduct  a  hearing  via  videoconferencing  for  small  children  or  people  with  disabilities. 
This might cause additional stress compared to a physical hearing through a competent 
court.  

time 

in  relation 

By introducing an electronic communication system (option 6.2) to be used as a rule for 
requests  and  communication, 
to  sending  requests  and  other 
communications  via  post  (e.g.  around  8  working  days  per  request,  depending  on  the 
number  of  communications  and  channels  used).  In  addition,  the  possibility  to  log  the 
steps  of  the  work  flow  (option  8.2)  would  increase  the  transparency  for  the  requesting 
court that could check the status of the request. This might reduce the number of status 
requests,  which  are  currently  sometimes  sent  even  before  the  90  day  period  is  over.  In 
addition,  such  a  tool  would  facilitate  the  preparation  of  statistics,  e.g.  to  check  which 
courts  and/or  Member  States  have  systematic  difficulties  in  meetings  the  deadlines.  It 
would then be possible to target support, e.g. training, which could lead to improvements 
in the medium term.  

Ensuring  the  equal  treatment  and  evidentiary  value  of  electronic  evidence  (option  6.2) 
would  also  reduce  delays  and  the  burden  for  businesses.  Currently,  it  is  possible  that 
parties produce and/or present evidence in digital format and it is not clear to what extent 
it may be accepted in another Member State. It is possible that it is refused, e.g. because 
the  court  in  question  is  not  allowed  to  open  external  USB  sticks.  In  such  cases,  delays 
would  occur  and  the  parties  may  need  to  go  through  additional  efforts  to  produce  the 
evidence in a different format.  

Finally,  additional  efforts  on  awareness  raising,  guidance  and  the  sharing  of  good 
practices (option 5.1 and horizontally) would also help to further speed up the procedures 
and thus reduce the burden for citizens and businesses. In particular, the sharing of best 
practices  is  expected  to  contribute  to  improving  and  possibly  streamlining  procedures 
136 

 
 
under  the  Regulation,  if  legal  professionals  take  them  into  account.  This  may  also 
increase  the  speed  and  efficiency  of  judicial  proceedings  (based  on  a  common 
understanding).  

Nevertheless,  the  positive  effects  would  depend  on  the  extent  to  which  the  Regulation 
and the additional material for awareness raising/guidance is actually known and used by 
legal professionals. 

Improving access to justice and the protection of the procedural rights of parties 

1.3 
to the proceedings 

Due to the reduction of the burden for citizens and businesses (e.g. reduction of delays 
and stress as discussed under the previous heading), it becomes easier for businesses and 
citizens to participate in cross-border legal proceedings. On this basis, access to justice is 
also improved.  

Per case, the protection of the rights of the parties to the proceedings remains at a similar 
level. The Regulation still contributes to making sure that all relevant evidence necessary 
for  the  claim  and/or  defence  may  be  gathered  in  an  efficient  way,  by  introducing 
common  channels  that  may  be  used  for  this  purpose.  It  is  positive  that  the  number  of 
potential  channels  to  be  used  under  the  Regulation  is  increased.  This  way,  citizens and 
businesses  would  benefit  from  the  Regulation  in  a  higher  number  of  cases.  The  new 
instrument  would  also  still  facilitate  the  participation  of  the  parties  in  the  taking  of 
evidence (Article 11). On this basis, the right of access to justice and the right to be heard 
are strengthened in the cases in which the Regulation is applied.  

Risks may arise based on the potential increased use of electronic communications and 
videoconferencing. It is important in this respect to implement these measures in a way 
that  does  not  infringe  e.g.  the  confidentiality  of  communications.  Specifically  with 
respect to videoconferencing, it would be important to ensure that the witness is (at least 
physically)  free  to  give  the  testimony,  which  is  more  difficult  in  the  context  of 
videoconferencing.  

2. 

Efficiency, incl. impacts on national judicial systems 

The  assessment  of  efficiency  concerns  the  extent  to  which  the  objectives  of  the 
Regulation  are  achieved  at  a  reasonable  cost.  In  that  sense,  the  implementation  of  the 
policy package is considered to be more efficient than the baseline scenario: 

  The  implementation  of  the  policy  package  is  associated  with  comparatively  high 
initial investments (i.e. capital investments, CAPEX) for public authorities that could 
be  co-financed  by  the  European  Commission.  Moreover,  recurring  operational 

137 

 
 
 
 
 
expenditures  (OPEX)  are  expected  to  be  incurred  by  public  authorities  for  the 
maintenance of the necessary hard- and software. 

  The  investment  in  technical  infrastructure  and  processes  is  expected  to  make  legal 
proceedings more efficient, which is expected to decrease necessary labour costs. This 
could mean that more legal proceedings could be handled by the same staff within the 
given time. In addition, the necessary investments are balanced by decreased costs for 
postal  services,  paper  and  office  supplies,  as  well  as  archiving  costs  that  would  be 
incurred in the future under the baseline scenario.  

  The  implementation  of  the  policy  package  is  expected  to  be  a  benefit  for  legal 
professionals,  in  particular  lawyers.  Although  they  would  incur  costs  in  relation  to 
understanding the amendments of Regulation (EC) 1206/2001 and checking the extent 
to  which  and  how  the  legislation  would  apply  to  a  specific  legal  case,  this  is  not 
considered  to  differ  from  the  baseline  scenario.  The  reason  for  this  is  that  most 
lawyers  do not  have  to  deal  with  the  Regulation  on  a  case-by-case  basis.  Therefore, 
the  time  they  would  have  to  invest  are  considered  business-as-usual  costs  and  is 
assumed  to  be  charged  to  their  clients.  However,  the  policy  package  is  expected  to 
reduce legal ambiguities compared to the baseline scenario. 

  Citizens and businesses are expected to benefit from the implementation of the policy 
package.  In  particular  non-monetary  benefits  such  as  increased  access  to  justice, 
freedom  of  choice,  and  decreased  levels  of  stress  within  legal  proceedings  are 
important  in  this  regard  –  especially  in  relation  to  vulnerable  persons.  It  is  also 
expected that the policy package could have some positive effects on the time taken to 
close a case. 

  No  major  effects  are  expected  in  relation  to  the  economy  overall.  It  is,  however, 
expected  that  positive  economic  effects  of  the  policy  package  for  specific  types  of 
businesses would lead to negative effects for other types of businesses. For instance, 
the  revenue  generated  for  IT  consulting  service  providers,  as  well  as  internet  and 
telecom  providers  through  the  implementation  of  the  policy  package  can  also  be 
regarded as a loss for postal service providers and office supply providers. Thus, the 
economic effect is regarded as neutral overall. 

Thus, the policy package has received an overall rating of +2 compared to the baseline 
scenario. 

For  the  assessment,  it  is  crucial  to  differentiate  between  the  costs  and  benefits  for 
different types of stakeholders in a qualitative and quantitative way. 

The impacts on the following types of stakeholders are discussed within this section: 

  European  Commission  and  Member  States’  public  authorities,  incl.  impacts  on 

national judicial systems; 

  Legal professionals (in particular judges and lawyers); 
  Businesses as service providers, e.g. in relation to postal services or IT consulting; and  
  Citizens and businesses as stakeholders in legal proceedings. 

An assessment of cost and benefits is provided below. 

138 

 
 
 
2.1 

European Commission and Member States’ public authorities  

This section provides an assessment of the cost and benefits for Member States’ public 
authorities due to the implementation of the policy package. 

2.1.1  Costs of the policy package for public authorities 

Under  the  preferred  policy  package,  the  European  Commission  and  Member  States’ 
public  authorities  are  expected  to  incur  costs  compared  to  the  baseline  scenario  in 
relation to: 

  Awareness-raising and the development and publication of best practice guides at the 

level of the European Commission; 

  Development,  implementation,  and  maintenance  of  (both  at  the  Commission  and 

Member State levels): 

o  CEF eDelivery (eCodex) as the default channel for electronic communication 

and document exchanges;  

o  Videoconferencing facilities, telephone-conferencing, and equipment for other 

distance communication means; and 

  Administrative  burden  for  Member  States  in  relation  to  the  organisation  of 

videoconferences and long distance communication. 

These  are  mostly  costs  that  the  European  Commission  and  Member  States’  public 
authorities  are  not  expected  to  incur  under  the  baseline  scenario.  Although  public 
authorities are also expected to incur costs with regard to administrative burden (e.g. to 
organise physical meetings) in the baseline scenario, the magnitude of burden is expected 
to be higher under the policy package. The reason for this is that using VC necessitates 
the  alignment  of  schedules  and  the  availability  of  facilities  not  only  of  a  court  and 
judicial officers in one Member State but in two. 

The  costs  for  the  awareness  raising  activities  are  dependent  on  the  exact  scope,  means 
and  target  groups  of  the  activities.  It  can  be  expected  that  the  organisation  of  these 
activities would be procured by the Commission.  

Experience-based estimates show that the implementation of awareness raising activities 
targeting  a  comparatively  limited  audience  can  at  least  cost  one  million  Euro  if 
implemented  in  all  28  Member  States  (depending  of  course  on  the  types  of  channels, 
frequency of communication, level of information etc.). 

Considering that there are approx. 82,000 professional judges in the EU, which could all 
be  handling  a  cross-border  case,  costs  could  be  up  to  around  2  million  Euro,  if  each 
individual would be targeted directly. 

The costs for the development and publication of best practice guides is expected to be 
rather  low  and  shared  by  the  European  Commission  and  the  Member  States  within  the 
EJN network. The costs would only be incurred once over the next couple of years as the 
practice guide would remain relevant for practitioners. 

139 

 
 
 
The actual content could be prepared during the EJN meetings which are largely financed 
by the network’s national contact points. 

The actual drafting, visualisation, layout etc. of the practice guide could be procured as a 
contract by the European Commission. Depending on the extent to which the EJN is able 
to prepare the substance of the guide within their meetings (or if additional research has 
to  be  done  by  the  contractor),  this  could  cost  between  15,000  and  30,000  Euro.  The 
estimate  includes  updates  of  other  aspects  related  to  the  Regulation,  covered  under  the 
other  options.  The  more  research  would  need  to  be  done  by  the  contractor,  the  more 
expensive the development of the practice guide would be.  

As  it  would  be  planned  to  distribute  the  guide  via  the  e-justice  portal,  thus  in  digital 
format, it can be assumed that there would be no costs associated with the distribution of 
the new guide.  

If printed material, e.g. flyers, brochures etc. would need to be prepared (e.g. for training 
sessions or as take-away at conferences), additional printing costs would be incurred. The 
exact costs depend on the number of prints, their paper and print quality, the number of 
pages  etc.  but  could  range  from  1.0  to  5.0  Euro  per  print.  If  one  practice  guide  was 
printed per court (i.e. 6,000 in the EU), this could amount to 30,000 Euro. 

Costs related to the development, implementation, and maintenance of CEF eDelivery as 
the  default  channel  for  electronic  communication  and  document  exchanges  would  be 
shared by the European Commission and the Member States68, e.g. through co-financing.  

It  is  expected  that  CEF  eDelivery  (e-CODEX)  would  necessitate  both  one-off  capital 
expenditures  (CAPEX),  e.g.  for  the  development  and  acquisition  of  respective 
technology, as well as recurring operational expenditures (OPEX) for its implementation 
and maintenance. The annual OPEX is expected to decrease incrementally over time due 
to  public  authorities  gaining  experience  and  expertise  regarding  eDelivery.  This  means 
that public authorities are expected to become more efficient over time. 

Costs related to the implementation and maintenance of CEF eDelivery could be within 
the range of those estimated for the implementation and maintenance of eCODEX. 

The  e-CODEX  draft  Impact  Assessment  indicates  that  acquisition  costs  for  the  e-
CODEX hardware  are marginal  at one-off costs of approx. EUR 15 000 (CAPEX) and 
approx. EUR 2 000 (OPEX) annually for hardware maintenance. This cost concerns the 
deployment  of  the  national  connector  and  gateway  which  are  the  components  of  the  e-
CODEX enabling the interactions between the relevant national IT systems of the various 
Member  States.  Of  course,  Member  States  have  to  ensure  that  all  their  national 
transmitting and receiving agencies (and central bodies) at local level will be connected 
to  their  national  gateway,  so  that  all  of  these  local  agencies  serve  as  e-CODEX  access 
points in the national system. Nevertheless, we do not calculate with additional hardware 

68 For instance, costs could be split 50/50. 

140 

 
 
                                                            
acquisition  costs  in  this  context,  because  we  assume  that  all  agencies  and  bodies 
designated under the Regulation (courts, bailiffs, governmental authorities) have internet 
connection and, at least, one PC point.   

In addition to the estimate above, the e-CODEX Impact Assessment mentions that costs 
related to installation, integration (into the national systems), and testing of the eCODEX 
infrastructure could add up to around 76 person days (relevant costs are mainly driven by 
the human resource cost of personnel needed).  

It is to be mentioned that even these costs falling to a Member State under the proposed 
policy  option  may  not  incur,  since  those  Member  States  (and  there  are  many  of  them) 
who have already deployed the necessary infrastructure in the context of the previous e-
CODEX  pilot  projects  may  choose  to  reuse  this  infrastructure  (national  connector  and 
gateway) for purposes of the communication system to be established under the Service 
Regulation.  

Overall,  the  associated  OPEX  is,  however,  not  expected  to  be  larger  than  the 
expenditures associated with postal services, as well as the costs for paper, archiving, and 
the rent related to archive space. 

For  the  sake  of  completeness,  it  should  be  noted  that  the  e-CODEX  draft  Impact 
Assessment  also  gives  estimates  on  the  costs  needed  for  the  implementation  and 
maintenance of the entire e-CODEX community at EU level, the financing of which will 
be considered under other initiatives and from other resources, consequently these costs 
are not to be regarded in our assessment.  

In  addition,  Member  States  are  also  expected  to  incur  costs  with  regard  to  the 
development, implementation, and maintenance of videoconferencing (VC) facilities, as 
well as other distance communication equipment. 

The acquisition, implementation, and operation of professional, high-end VC equipment 
(e.g.  similar  to  those  used  by  the  Commission  in  their  larger  conference  rooms)  could 
cost as much as 90,000 Euro – depending on the type of systems and its functionalities 
(e.g. number of microphones, cameras, extent to which the system is smart and can track 
conversations by zooming in on attendees that currently use the microphone). 

This  estimate  seems  to  be  very  high.  Prices  available  online  show  that  approx.  3,000 
Euro per month could be a more realistic estimate.  

This means that annual costs per court could be in the range of 36,000 Euro. 

According to CEPEJ 2014, there are 6,000 courts in the EU, of which a limited number 
already has VC facilities. If all courts were to be equipped with one VC facility – which 
is still unlikely – costs could be as high as 216 million Euro across all Member States, i.e. 
on average 8 million Euro per Member State.  

There  could  be  similarly  high  costs  for  the  replacement  of  the  current  system  after  a 
couple of years of maintenance. 

141 

 
 
Similar  to  eDelivery,  the  implementation  of  VC  and  other  distance  communication 
means  are  expected  to  necessitate  both  one-off  capital  expenditures  (CAPEX),  e.g. 
purchasing the necessary hardware, as well as recurring operational expenditures (OPEX) 
for its maintenance. The annual OPEX is  expected to  decrease incrementally over time 
due  to  public  authorities  gaining  experience  and  expertise  regarding  eDelivery.  This 
means that public authorities are expected to become more efficient over time. 

if 

that 

time  costs  are 

in-person  meetings69  showed 

The  benefits  of  videoconferencing  compared  to  face-to-face  meetings  are,  however, 
being  debated.  A  study  carried  out  in  2014  by  Dennis  Ong,  Tim  Moors,  and  Vijay 
Sivaraman on the comparison of the energy, carbon and time costs of videoconferencing 
and 
into  account, 
videoconferencing might become a less attractive meeting mode than in-person meetings. 
The  study  argues  that  the  “main  cause  of  this  is  the  lower  task  efficacy  of 
videoconferencing, which makes the meeting unnecessarily longer and therefore incurs a 
higher time cost for participants. Therefore, for the common case where the efficacy of 
videoconferencing  is  lower  than  an  in-person  meeting,  our  results  show  that  it  is 
important to evaluate the meeting versus the total participants’ travel time required for in-
person  meeting.  Longer  travel  time  does  not  necessarily  translate  into  a  higher  overall 
cost, especially if the meeting duration is long.” 

taken 

Furthermore,  there  could  be  costs  for  stakeholders  in  the  future  regarding  the 
interoperability  (or  lack  thereof)  between  competing  VC  and  distance  communication 
systems deployed by the Member States (e.g. domestic vs. cross-border systems or non-
interoperable cross-border systems in different Member States). 

In addition to CAPEX and OPEX, Member States’ public authorities are expected to face 
an  administrative  burden  in  relation  to  the  organisation  of  VC  and  other  long-distance 
communication. 

More specifically, this involves aligning the schedules of the different parties involved in 
the  proceeding  that  would  need  to  be  present  in  a  videoconference,  as  well  as  the 
availability of facilities not only in one Member State but in two. 

As only a limited number of VC facilities is likely to be available (e.g. one per court or 
even less), the possibility of organising a hearing is also subject to the availability of the 
relevant equipment. As a consequence, VC hearings may have to be postponed until the 
VC  facility  of  the  court  (or  another  in  close  proximity)  is  available.  This  can  lead  to 
undue delays of legal proceedings. 

These undue delays may cause public authorities to deviate from the rule to use VC or 
other distance communication means to take evidence across borders.  

Costs in relation to administrative burden would solely be incurred by public authorities. 
It  is  expected  that  the  magnitude  of  the  costs  decreases  over  time  as  public  authorities 

69 See: https://www.sciencedirect.com/science/article/pii/S0140366414000620  

142 

 
 
                                                            
become more acquainted and experienced with the rules and procedures. Moreover, VC 
in  particular  is  expected  to  become  more  prominent  and  user-friendly  in  the  future. 
Therefore,  deviations  from  the  rule  to  use  VC  or  other  distance  communication  means 
are  expected  to  become  less  frequent  over  time.  This  will  contribute  to  a  decrease  in 
administrative burden in the long run.  

2.1.2  Benefits of the policy package for public authorities 

Under  the  preferred  policy  package,  Member  States’  public  authorities  are  expected  to 
benefit from reduced costs compared to the baseline scenario in relation to: 

  Postal services; 
  Paper, envelopes, and printer cartridges; 
  Shelfs, archiving material (e.g. folders, clips), and space (i.e. office rent); 
  Labour, e.g. communication and archiving tasks; and 
  Administrative burden, e.g. in relation to travel reimbursements70 for stakeholders. 

Moreover,  public  authorities  also  benefit  from  time  savings  due  to  more  efficient  legal 
proceedings.  This  leads  to  a  situation  in  which  more  legal  proceedings  can  be  handled 
within the same time, given constant staffing.71  

Moreover, public authorities are expected to benefit from increased legal certainty when 
and how to apply the Regulation, as well as mutual trust between Member States. This is 
expected to have a positive impact on the Member States’ national judicial systems. 

With the implementation of CEF eDelivery, public authorities are expected to incur less 
costs with regard to postal services in the future. The eCODEX Impact Assessment, for 
instance,  argues  that  the  replacement  of  postal  services  with  digital  communication 
generates potential savings of between 8 Euro and 21 Euro per legal proceeding.  

The estimates developed as part of this study show that it can be expected that Regulation 
(EC)  1206/2001  would  be  applied  in  around  700,000  cases  per  year  on  average  until 
2030, meaning that this could amount to potential savings of approx. 6 to 15 million Euro 
per year across the entire EU. 

In addition, public authorities are expected to save costs in relation to paper, envelopes, 
and printer cartridges. Based on the following assumptions, potential costs savings can be 

70 The actual reimbursement of travel costs, as well as of lost professional income, e.g. during the travel to 
and the time of a hearing, are not considered to be a benefit for businesses and citizens as they would be 
reimbursed by public authorities under the baseline scenario and the policy package either way. 
71 Efficiency gains in legal proceedings could, however, also lead to budget and staff cuts in practice. This 
would then imply that the number of legal proceedings that can be handled within a given time would 
remain constant while the necessary staff would decrease.  

143 

 
 
 
                                                            
estimated to be approx. 300,000 Euro across the EU per year, according to the following 
logic:72 

  700,000 legal proceedings per year on average; 
  4  documents  (with  at  least  one  page)  are  exchanged  between  authorities  per  legal 

proceeding on average; 

  500 sheets of paper costs around 2 Euro on average; 
  500 envelopes could cost around 15 Euro on average; and 
  Printer cartridges cost about 100 Euro on average and last for approx. 1,400 pages. 

Moreover,  public  authorities  are  also  expected  to  incur  less  costs  for  shelfs,  archiving 
material,  and  archiving  space.  A  German  service  provider73,  for  instance,  charges  the 
archiving of a running meter of folders (i.e. approx. 20 folders) with 25 Euro per meter as 
one-off  cost,  plus  1.25  Euro  as  monthly  fee.  Assuming  that  the  postal  communication 
(i.e.  4  documents  on  average  with  at  least  one  page)  concerning  each  of  the  approx. 
700,000 legal proceedings per year is stored in a separate folder in two Member States 
for  at  least  five  years,  this  could  amount  up  to  11  million  Euro  per  year  across  all  EU 
Member  States  of  potential  savings  through  the  implementation  of  CEF  eDelivery.74 
Since this estimate is based on the charges used by a German service provider, the actual 
cost savings are very likely to be lower across the EU. 

Public authorities are also expected to benefit from decreasing labour costs regarding in 
particular communication, both in monetary (i.e. less staff costs) and temporal (i.e. less 
delays) terms. It can be assumed that each communication by post takes between 1 and 3 
working days from the day the document is submitted until it is delivered by post. This 
means  that  if  authorities  communicate  four  times  with  each  other  on  average  by  post, 
communication-related delays can amount to 4 to 12 days (i.e. 8 days on average). Thus, 
if all 700,000 legal proceedings are delayed by 8 days on average, the implementation of 
CEF eDelivery could potentially save up to 5.6 million working days per year across the 
EU from the overall length of all legal procedures taken together.  

Data  from  Germany  also  shows  that  there  could  be  time  savings  with  regard  to  the 
processing  of  a  case  in  the  range  of  5  to  10  minutes  per  case  as  data  would  no  longer 
have to be entered manually into courts’ case management system. 

The time and efficiency gained through this could be used to either handle: 

  More legal proceedings within the given time by the same staff; 
  The same number of legal proceedings within the given time by less staff; or 
  The same number of legal proceedings with the given staff in less time. 

72  The  formula  for  this  is:  (((700,000  legal  proceedings  *  4  documents)  /  500  papers)  *  2  Euro)  + 
(((700,000  legal  proceedings  *  4  documents)  /  500  envelopes)  *  15  Euro)  +  (((700,000  legal 
proceedings * 4 documents) / 1,400 prints) * 100 Euro) = 295,200 Euro. 

73 See: http://www.aktenfarm.de/index.php?id=15  
74 The formula for this is: (700,000 legal proceedings * 2 Member States * 4 documents / 20 folders per 
meter  *  25  Euro)  +  (700,000  legal  proceedings  *  2  Member  States  *  4  documents  /  20  folders  per 
meter * 12 months * 1.25 Euro) = 11,200,000 Euro 

144 

 
 
                                                            
These types of benefits are directly linked to benefits for legal professionals, businesses 
and citizens. 

Finally, the implementation of VC and other distance communication could save public 
authorities  administrative  burden  in  relation  to  the  reimbursement  of  travel  costs  for 
stakeholders and parties involved in a legal proceeding. This could e.g. save 2 to 4 hours 
of  work  per  legal  proceeding  depending  on  how  many  persons’  travel costs  have  to  be 
reimbursed.  The  average  hourly  wage  in  the  EU  is  approx. 25  Euro.  Thus,  between  35 
million Euro and 70 million Euro could be saved.  

2.2 

Legal professionals  

Legal  professionals,  in  particular  judges  and  lawyers,  are  expected  to  incur  costs  with 
regard to the following aspects: 

  Understanding the new legislation and checking which means to take evidence can be 

applied in a specific case and are most appropriate; 

  Administrative  burden  regarding  the  organisation  of  VC  and  other  distance 

communication as a rule. 

Due to the implementation of the policy package compared to the baseline scenario, legal 
professionals  (in  particular  judges  and  lawyers)  will  have  to  invest  time  into 
understanding the new legislation and its practical implications. With respect to judges, 
this  means  that  less  time  can  be  spent  on  other  cases,  as  well  as  the  administration  of 
their work. It is not expected that this would lead to a financial detriment for judges as 
they  are,  as  public  officials,  not  paid  on  an  hourly  or  daily  basis  but  through  regular 
monthly wages. 

For lawyers, especially those working independent of larger law firms, corporations, or 
legal networks, however, having to analyse and digest a new set of legislative rules can 
be  time-consuming  (depending  on  the  complexity  of  legislation),  and  thus  factor  in 
negatively  on  the  revenue  they  are  able  to  generate  within  a  given  time  because  they 
cannot  spend  this  time  on  billable  client  work  –  especially  since  most  lawyers  do  not 
have  to  deal  with  Regulation  (EC)  1206/2001  or  cross-border  cases  on  a  day-by-day 
basis.  An  individual  lawyer  could,  for  instance,  lose  around  50  Euro  to  100  Euro  if  it 
takes the person one hour to check the legislation. Assuming that approx. half a million 
lawyers  across  the  EU  handle  the  700,000  annual  legal  proceedings,  this  could  lead  to 
one-off  costs  of  25  million  Euro  to  50  million  Euro.  It  is  not  expected  that  such  an 
amount  would  be  incurred  by  different  lawyers  each  year  as  most  lawyers  deal  with 
cross-border cases only once (most of them never do), while others deal with it on a more 
frequent basis. On an individual basis, costs would, of course, only be incurred once for 
those that deal with the Regulation (EC) 1206/2001 on a more frequent basis. 

In addition, lawyers could incur costs in relation to understanding which means to take 
evidence across borders can be applied in a specific case  or are most appropriate given 

145 

 
 
 
the  specific  circumstances.  Although  VC  and  other  distance  communication  should  be 
used  as  a  rule  under  the  Regulation,  there  is  no  obligation  to  use  it  and  there  may  be 
circumstances  under  which  Member  States’  national  procedural  law  does  not  allow  for 
the taking of evidence by means of VC or other distance communication means. Those 
circumstances  may  not  be  clear  a  priori  so  that  legal  professionals  do  not  necessarily 
know  in  advance.  However,  at  some  point  during  the  legal  proceeding,  lawyers  would 
need  to  check  which  means  are  applicable  under  the  given  circumstances  of  the  legal 
proceeding  and  to  what  extent  and  how  the  Regulation  can  be  applied  in  order  not  to 
delay the legal proceeding and to cause clients undue costs. It is not fully clear to what 
extent lawyers would forward these costs to citizens and businesses via their fees. 

These costs are, however, not specific to this policy package, but could be incurred under 
any configuration of options compared to the baseline scenario. Rather than actual losses 
to lawyers, the costs could also be seen as investments that lawyers would have to make 
in order to generate new business – in particular if a lawyer is located close to a border or 
if the person would like to specialise on cross-border cases. 

Similar to public authorities, legal professionals are also expected to face administrative 
burden in relation to the organisation of VC and other long-distance communication. 

line  with 

the  argumentation  and  estimates  outlined  above  concerning 

However, legal professionals also benefit from the implementation of the policy package. 
the 
In 
implementation  of  CEF  eDelivery  and  VC  facilities,  legal  proceedings  are  expected  to 
become more efficient and less time consuming. Lawyers, for instance, benefit from this 
development as it could be possible for them to handle more cases within the same time. 

Although this could lead to lower revenue on a case by case basis, it could be argued that 
lawyers’ overall revenue could increase through the increased number of cases – at least 
for the most efficient lawyers. 

Moreover, lawyers are expected to benefit from increased legal certainty when and how 
to apply the Regulation, as well as mutual trust between Member States. This is expected 
to be have a positive impact on the take-up of Regulation (EC) 1206/2001 by lawyers, as 
well  as  the  use  of  VC  or  other  distance  communication.  Moreover,  increased  legal 
certainty  is  expected  to  have  a  positive  impact  on  Member  States’  national  judicial 
systems. 

2.3 

Businesses as service providers  

The  implementation  of  the  policy  package  is  expected  to  have  positive  and  negative 
economic impacts compared to the baseline scenario on service-providing businesses in 
different industries.  

Negative economic impacts are expected for the following types of businesses: 

  Postal service providers; 

146 

 
 
 
  Paper and office supply providers;  
  Providers of archiving shelfs; and 
  Transport service providers.75 

Through  the  implementation  of  CEF  eDelivery,  as  well  as  VC  and  other  distance 
communication  means,  the  revenue  of  the  abovementioned  types  of  businesses  is 
expected to decrease marginally as these firms’ core businesses is not service provision 
related to judicial cooperation but is much wider than that. 

As  concerns  transport  service  provides,  a  comparison  of  three  (Austria,  Lithuania,  and 
Spain)  Member  States’  prices  for  domestic  and  cross-border  travel  with  long  distance 
bus,  train,  and  aircraft  showed  that  cross-border  travel  is  around  17%  more  expensive 
than domestic travel.76 Thus, transport service providers are expected to lose revenue in 
case stakeholders only have  to  travel in  their Member State to  attend a hearing (e.g. to 
use a VC facility in another court) or if they do not have to travel at all. 

In  contrast,  a  small  part  of  businesses’  revenue  would  be  shifted  from  the 
abovementioned to other types of businesses. The types of businesses that would benefit 
from the implementation of the policy package compared to the baseline scenario are: 

  Providers of IT consulting services; 
  Manufacturers of VC and other distance communication equipment, as well as related 

service providers; 

  Internet and telecommunication service providers; 
  Cloud storage service providers; and 
  Archiving service providers. 

The  revenue  of  these  types  of  businesses  is  expected  to  increase  marginally  as  these 
firms’ core businesses is not service provision related to judicial cooperation but is much 
wider than that. 

In  line  with  the  analysis  contained  in  the  eCODEX  Impact  Assessment,  IT  consulting 
service  providers  could  gain  around  1  million  Euro  per  year  for  the  implementation  of 
CEF eDelivery. 

Available  estimates  suggest  that  courts  would  have  to  spend  approx.  36,000  Euro  per 
year on VC. As there are approx. 6,000 courts in the EU according to CEPEJ 2014 (of 
which a limited number already has VC facilities), manufacturers and service providers 
in  the  area  of  VC  could  gain  as  much  as  216  million  Euro  across  all  Member  States 

75 For instance airlines, train service providers, or long distance bus lines that would be used if stakeholders 

were summoned to court in another Member State. 

76 A quick online search of travel costs for different types of modes (aircraft, bus, train) for domestic and 
cross-border travel in three Member States (Austria, Lithuania, Spain) showed that domestic travel can 
be  around  58  Euro  on  average  whereas  cross-border  travel  can  be  around  68  Euro  on  average.  In 
particular flights can, of course, be much more expensive than 68 Euro however  – both domestic, as 
well as across borders. 

147 

 
 
                                                            
through the implementation of the policy package compared to the baseline scenario – if 
all courts were to be equipped with at least one VC facility. 

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 equalise themselves. From an economic perspective, the implementation of the policy 
package is considered to be a “zero-sum game”.  

2.4 

Citizens and businesses as stakeholders in legal proceedings 

Citizens  and  businesses  as  stakeholders  in  legal  proceedings  are  not  expected  to  incur 
major costs through the implementation of the policy package compared to the baseline 
scenario.  

Similar  to  public  authorities  and  legal  professionals,  there  could  be  costs  related  to 
administrative  burden  in  relation  to  the  organisation  of  VC  and  other  long-distance 
communication. The costs would stem from efforts to indicate to public authorities when 
citizens and businesses would be available for VC or other distance communication, as 
well as the possibly undue delays. These are, however, expected to be marginal. 

The  policy  package  is,  however,  expected  to  bring  benefits  compared  to  the  baseline 
scenario such as: 

  Time savings due to more efficient procedures; and 
  Decreased legal fees for lawyers. 

If public authorities communicate four times with each other on average by post within a 
given legal proceeding, communication related delays can amount to 4 to 12 days (i.e. 8 
days on average). The implementation of CEF eDelivery could save this time for citizens 
and businesses.  

This is of particular importance for businesses in the context of cross-border trade as the 
timely completion of a legal proceeding without undue delays can e.g. have implications 
in  cases  around  financial  or  maintenance  claims.  If  legal  proceedings  are  delayed, 
businesses may not be paid or supplied on time which could lead to detriment for clients. 

Moreover,  citizens  and  businesses  are  expected  to  benefit  from  decreased  legal  fees. 
Through  the  implementation  of  CEF  eDelivery  and  increased  uptake  of  VC  and  other 
distance communication means, legal proceedings are expected to become more efficient.  

Through  the  implementation  of  VC  and  other  distance  communication  means,  citizens 
and business are expected to benefit from increased access to justice, as well as freedom 
of  choice  concerning  the  most  appropriate  means  to  take  evidence  across  borders 
(depending on the legal proceeding, it could be that there are means to take evidence that 
are  more  appropriate  than  VC  or  other  distance  communication).  This  means  that 
vulnerable  citizens  such  as  elderly,  persons  that  suffered  physical  or  psychological 

148 

 
 
 
damage (e.g. due to an accident), persons with physical or mental disabilities or anxiety 
disorders  (incl.  aviatophobia),  children,  economically  disadvantaged  persons,  and  also 
persons that have legitimate reason not to travel (e.g. job-related duties) can still be heard 
in  a legal proceeding and decide what the most appropriate means to  take evidence for 
them is (e.g. a spouse may want to be present in court to testify, or a creditor may want to 
physically meet debtors). 

Decreased  travel  costs  (and  possibly  the  loss  of  professional  income),  e.g.  during  the 
travel to and the time of a hearing, are not considered to be a benefit for businesses and 
citizens  as  they  would  be  reimbursed  by  public  authorities  under  the  baseline  scenario 
and the policy package either way. 

Finally,  the  implementation  of  the  policy  package  is  expected  to  lead  to  less  stressful 
legal  proceedings  compared  to  the  baseline  scenario.  This  is  considered  to  be  an 
important non-monetary benefit for citizens. 

3. 

Coherence  

The  coherence  of  the  Regulation  to  EU  and  national  law  would  be  slightly  improved 
compared to the baseline scenario.  

The Regulation would continue to be largely coherent internally, in relation to EU law, 
national law and bilateral agreements. In addition, some of the options would contribute 
positively to the coherence of the Regulation.  

The  clarification  of  the relationship  to  other  EU  rules  and  the  mentioning  of  additional 
channels  to  take  evidence  (option  1.3)  would  be  helpful  in  increasing  clarity  on  the 
relationship  with  other  instruments.  However,  the  small  uncertainties  identified  in  the 
evaluations would persist. Notably, the use of ‘request’77 and potential overlaps with the 
Brussels IIa Regulation would not be clarified.78  

The codification of CJEU case law (option 1.3) would be coherent with the general EU 
policy objectives. The new rules on the taking of evidence through diplomatic officers or 
consular agents would follow the rules of the 1970 Hague Convention and would thus be 
coherent with it.  

77 Article 2(1) stipulates that the term “requests” in the Regulation refers to requests under Article 1(1)(a), 
i.e.  requests  asking  the  competent  court  in  another  Member  State  to  take  evidence.  Nevertheless, 
Article 4(1) indicates that form I could be used for posing ‘requests’, although form I concerns direct 
taking of evidence. On this basis, it may not be entirely clear which requests are concerned by the rules 
laid  down  in  Articles  10  ff.  In  addition,  the  term  “request”  is  being  used  with  regard  to  the  direct 
taking of evidence in Article 17. 

78 Certain overlaps may exist with the Brussels IIa and Maintenance Regulations, notably as concerns the 
tasks of the Central Bodies to collect information concerning the situation of the child. With respect to 
Brussels IIa, this has led to a lack of clarity as to whether the Evidence Regulation also applies to such 
situations.  

149 

 
 
 
 
                                                            
With  the  definition  of  “judicial  authorities”  (option  2.4),  a  similar  approach  to  the 
Maintenance Regulation would be taken, although the Maintenance Regulation speaks of 
courts.  

The encouragement of the use of videoconferencing (option 4.2) is in line with the recast 
of the Small Claims Regulation79, which also explicitly refers to videoconferencing.  

The  introduction  of  a  tool  for  electronic  communications  and  the  recognition  of  digital 
evidence (option 6.2) as well as the encouragement of videoconferencing (option 4.2) are 
in line with and support the current strategies of the EU Commission in the context of the 
e-justice  strategy80.  It  is  also  in  line  with  ongoing  projects  in  many  Member  States  to 
increase the use of electronic communications in the area of justice.  

With respect to the introduction of the tool for electronic communications, we note that it 
aims at building on existing standards and platforms and that it is planned to use the same 
tool for the Service Regulation.81  

Finally,  it  is  noted  that  negotiations  with  the  Lugano  countries82  on  the  service  of 
documents  and  taking  of  evidence,  once  the  changes  currently  under  discussion  are 
implemented.83  This  is  expected  to  have  positive  effects  on  the  coherence  with  the 
Lugano Convention.  

4. 

Impacts on fundamental rights and the protection of personal data 

The  policy  package  addresses  several  issues  which  cause  legal  uncertainty  and  delays 
under  the  baseline  scenario.  At  the  same  time,  the  policy  package  increases  access  to 
justice  by  promoting  the  use  of  distance  communication  to  hear  witnesses  and  affected 
parties. The effect of the policy package on the protection of personal data will largely 
depend on the implementation at the Member State level.  

First,  option  1.3  clarifies  the  existing  means  for  taking  of  evidence  available  under  the 
Regulation  and  national  procedural  law  and  their  relationship,  contributing  to  the 
fundamental  right  to  an  effective  judicial  remedy.  This  way,  the  efficient  methods  to 
obtain evidence are acknowledged and promoted under the Regulation. While the same 
methods would be available under the baseline scenario, awareness-raising (contained in 

79  Regulation  (EU)  2015/2421  of  the  European  Parliament  and  of  the  Council  of  16  December  2015 
amending  Regulation  (EC)  No  861/2007  establishing  a  European  Small  Claims  Procedure  and 
Regulation  (EC)  No  1896/2006  creating  a  European  order  for  payment  procedure  (OJ  L  341, 
24.12.2015, pp. 1-13).  

80 Multiannual European e-Justice Action Plan 2014-2018, OJ C 182, 14.6.2014, p. 2-13.  
81 See the separate volume on the Service Regulation produced under this assignment.  
82 Denmark, Iceland, Norway, Switzerland.  
83 DG JUST Management Plan 2018, p. 26, see: https://ec.europa.eu/info/sites/info/files/management-plan-

just-2018_en_0.pdf 

150 

 
 
 
 
                                                            
option 5.1), together with the additional clarifications in option 1.3 are expected to have a 
positive effect on the access to justice and contribute to faster proceedings.  

Likewise, clarifying definitions and concepts (options 2.4 and 3.2) is expected to reduce 
legal  uncertainty  and  speed  up  procedures  under  the  Regulation  in  practice.  Together, 
these options will be to the benefit of vulnerable persons. They potentially reduce stress 
for parties in the proceedings by addressing causes for delays. Furthermore, they reduce 
costs or failures to obtain evidence experienced otherwise, where an inefficient method to 
take  evidence  would  have  been  chosen  due  to  a  lack  of  information  under  the  baseline 
scenario.  

Through  the  implementation  of  videoconferencing  and  other  distance  communication 
means, citizens and business are expected to benefit from increased access to justice, as 
well as freedom of choice concerning the most appropriate means to take evidence across 
borders.  This  means  that  vulnerable  citizens  such  as  elderly,  persons  that  suffered 
physical  or  psychological  damage  (e.g.  due  to  an  accident)  or  persons  with  physical  or 
mental  disabilities,  children,  economically  disadvantaged  person  can  still  be  heard  in  a 
legal proceeding. 

Third,  the  proposed  change  towards  using  electronic  communication  under  the 
Regulation (i.e. through the use of video-conferencing in option 4.2 or the CEF eDelivery 
infrastructure  in  option  6.2  and  8.2)  is  expected  to  exert  effects  on  the  protection  of 
personal data.  

In  both  cases,  the  technical  implementation  and  operation  will  be  determined  and 
controlled by Member States themselves, even if the infrastructure is partially developed 
and  financed  at  the  EU  level.  On  the  one  hand,  the  Regulation  does  not  explicitly 
mention requirements for security of transmissions in distance communication (or related 
safeguards to protect personal information). This could, however, be made a precondition 
to obtain the funding mentioned in option 4.2 (b). On the other hand, the CEF eDelivery 
infrastructure is based on a decentralised architecture. As a result, data will not be stored 
or processed by the organisation responsible for maintaining the CEF components in the 
e-CODEX  project.  Data  protection  requirements  will  therefore  apply  exclusively  at 
national level for the different procedures where e-CODEX is implemented. 

Important external factors with regard to the protection of personal data that also affect 
the proposed policy package are the GDPR and the persistent threats to cybersecurity in 
the public sector. On the one hand, after entering into force in May 2018, the GDPR is 
expected  to  prompt  actions  to  ensure  security  and  integrity  of  databases  and  swift 
reactions  to  breaches  of  privacy  in  the  judiciary.  On  the  other  hand,  the  incidence  of 
attacks  on  public  IT  infrastructure  is  expected  to  increase  with  their  proliferation  until 
2030.  These  are  expected  to  also  affect  the  judiciary  in  the  Member  States,  and  their 
impact could be potentially be aggravated because of the growing interconnectedness of 
IT systems (nationally and at the EU level). Thus, the impact of options 6.2 and 8.2 on 
the protection of personal data will crucially depend on the actions at the Member State 
level.  

151 

 
 
5. 

Environmental impacts 

Compared to the baseline scenario, the policy package is expected to have a number of 
potential positive impacts on the environment. This impact is driven by two elements in 
particular, namely: 

  The promotion of videoconferencing and other means of distance communication for 

the (direct) taking of evidence (options 1.3(ii) and 4.2) ; and  

  The  plan  to  replace  paper-based  communication  by  electronic  means  using  CEF 

eDelivery (eCodex) (options 6.2 and 8.2) 

As  part  of  the  preferred  policy  package,  videoconferencing  should  replace  instances  of 
physical summons (e.g. of witnesses, experts, etc.) to court (options 4.2). This way, the 
need  to  travel  across  borders  to  participate  in  proceedings  is  reduced,  which  in  turn  is 
assumed to affect pollution and/or carbon emissions from passenger transport. Indeed, a 
number  of  past  studies  have  estimated  a  positive  impact  on  the  environment  due  to 
increased  meetings  via  distance  communication  (including  videoconferencing)  and 
reduced air travel in business contexts.84 According to a 2014 study, videoconferencing 
was estimated to take up at most 7% of the energy and carbon emission of an in-person 
meeting.85  Therefore,  reducing  instances  in  which  experts  and  witnesses  travel  across 
borders  due  to  the  use  of  distance  communication  (including  videoconferencing)  is 
expected to have a positive effect on the environment.86  

This said, technology has its own carbon footprint as it consumes energy in production 
and operation.87 In addition, its production requires non-renewable (and possibly scarce) 
resources and produces waste after being decommissioned. As a result, the final impact 
of  the  policy  package  depends  to  a large  extent  on  the life-cycle  of  existing  and  future 
equipment itself, as well as the developments in energy-efficiency of the IT infrastructure 
in which they are embedded. 

The intended replacement of paper-based communication with electronic communication 
via  CEF  eDelivery  (options  6.2  and  8.2)  is  also  expected  to  have  a  positive 
environmental  impact.  As  a  paperless  system,  CEF  eDelivery  would  reduce  the  use  of 
resources  (e.g.  water  and  wood  used  for  paper  production),  environmental  impacts  of 

84  See 

for 

instance  Econometrica 

and  Business  Travel. 
https://ecometrica.com/assets/vc_businesstravel_factsheet.pdf  or  Carbon  Disclosure  Project  (2010): 
The 
Revolution. 
https://www.att.com/Common/about_us/files/pdf/Telepresence/CDP_Telepresence_Report_Final.pdf  
85  Ong,  D.  et  al.  (2014):  Comparison  of  the  energy,  carbon  and  time  costs  of  videoconferencing  and  in-

(2008)  Video  Conferencing 

Telepresence 

person meetings. In: Computer Communications. 50. Doi: 10.1016/j.comcom.2014.02.009. 

86 However, the precise gains are difficult to estimate, since cross-border proceedings do not always entail 

summons to competent courts. 

87 Vandromme N. et al. (2014): Life cycle assessment of videoconferencing with call management servers 
relying on virtualization.  In: ICT for Sustainability 2014, p. 281-289 

152 

 
 
 
                                                            
their  production  (e.g.  from  the  use  of  chemicals  in  paper  production)  and  transporting 
paper to the buyer. In addition, the use of toner and ink is expected to be reduced.88  

According to interviewed stakeholders, one important source of waste are printing errors 
or  duplicate  prints  due  to  confusions  about  which  forms  have  to  be  used.  Electronic 
communication through the CEF eDelivery platform could address this cause of waste by 
implementing checks and guidance on how to fill in forms directly on the user interface. 
This way, even if a paperless administration within a competent court is not yet feasible 
(or desirable), waste of paper and toner could be reduced. 

Finally, electronic communication is expected to reduce the emissions from transport in 
postal services. Overall, it is reasonable to assume that modernisation of the judiciary in 
the  EU  Member  States  will  increase  the  amount  of  hardware  and  server  infrastructure 
used on a daily basis until 2030 – independently of any amendments to Regulation (EC) 
1206/2001. Thus, overall energy consumption of IT infrastructure is expected to increase 
regardless  of  the  preferred  policy  package.  Additional  electronic  communication  is 
expected  to  have  an  impact  on  energy  consumption  (due  to  increased  network  traffic). 
Compared  to  paper-based  communication,  however,  the  carbon  footprint  is  expected 
smaller  under  the  proposed  changes  in  the  policy  packages  (illustrated  in  the  text  box 
below).  

88 While this impact may not affect production and the supply chain for both goods presently, reductions in 

demand are likely to have an impact on production and transport these products in the long run. 

153 

 
 
 
 
 
                                                            
ANNEX 8: CONCLUSIONS OF THE EVALUATION OF REGULATION (EC) 1206/2001 

Overall, Regulation (EC) 1206/2001 has made a contribution to achieving its general as 
well  as  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 
increased the efficiency of legal proceedings– both compared to the Hague Convention 
and  over  time  between  2001  and  2017.  The  Regulation  thus  contributes  to  an  area  of 
freedom, security and justice and a 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. 

It  should,  however,  be  noted  that  the  Regulation  is  applied  for  the  purpose  of  cross-
border  taking  of  evidence  only  to  a  certain  extent.  Cross-border  taking  of  evidence  is 
carried out outside the Regulation in a significant number of cases. The added value of 
the Regulation is therefore limited to those cases in which the Regulation is applied.  

There is room for improvement based on a number of obstacles identified. These concern 
in  particular  the  expedited  execution  of  requests  in  order  to  avoid  undue  delays  for 
businesses and citizens and a fuller exploitation of the potential of modern technologies 
for  speedier  communication  and  direct  taking  of  evidence,  in  particular  through 
videoconferencing.  Also  the  legal  uncertainty  cause  by  the  parallel  application  of  the 
Regulation and channels under national law can be regarded as a possible area in which 
improvements could be made. 

154 

 
 
 
 
ANNEX 9: EVALUATION REPORT

155 

 
 
   EUROPEAN COMMISSION  Brussels, XXX  […](2018) XXX draft  COMMISSION STAFF WORKING DOCUMENT EVALUATION 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   
 
 
 
Table of contents 

INTRODUCTION  3 

BACKGROUND TO THE INTERVENTION 

3 

IMPLEMENTATION / STATE OF PLAY 

10 

METHOD 

12 

ANALYSIS AND ANSWERS TO THE EVALUATION QUESTIONS 14 

CONCLUSIONS 

49 

1. 

2. 

3. 

4. 

5. 

6. 

2 

 
1. 

INTRODUCTION 

The objective of this evaluation is to carry out an ex-post evaluation of Council Regulation 
(EC)  1206/2001  on  cooperation  between  the  courts  of  the  Member  States  in  the  taking  of 
evidence in civil or commercial matters and its practical application. 

Regulation (EC) 1206/2001 establishes an EU-wide system of direct and rapid transmission 
of  requests  for  the  taking  and  execution  of  evidence  between  courts  in  different  Member 
States,  and  provides  criteria  regarding  the  form  and  content  of  the  request.  The  evaluation 
includes the different procedures laid down in the Regulation.  

Regarding the temporal scope, the evaluation covers the period 
from  2001  until  2017.  As 
concerns  the  geographical  scope,  all  EU  Member  States  are  covered,  with  the  exception  of 
Denmark.89  For  the  purpose  of  the  data  collection  activities,  all  EU  Member  States  were 
considered  insofar  as  information  was  available  via  secondary  sources  (e.g.  existing  EU 
studies). In addition, fieldwork has been carried out in ten selected Member States: Belgium, 
France, Hungary, Ireland, Italy, Estonia, Germany, Greece, Romania and Sweden.90  

In  line  with  the  Better  Regulation  guidelines,  the  evaluation  will  examine  the  5  key 
mandatory  evaluation  criteria  of  effectiveness,  efficiency,  relevance,  coherence  and  EU 
added value, in order to examine issues which have already been identified in the Inception 
Impact  Assessment91.  The  evaluation's  findings  will  feed  into  an  impact  assessment  of  the 
policy options which could address the problems identified. 

2.  BACKGROUND TO THE INTERVENTION 

2.1   Objectives and Intervention Logic of the Regulation 

In cross-border civil or commercial proceedings pending in one Member State, the taking of 
evidence in another Member State is often of high importance. As it is often crucial to present 
sufficient evidence to the court to prove a claim, Regulation (EC) 1206/2001 is an important 
instrument for the European judicial cooperation. 

The  Regulation  plays  an  important  role  in  the  EU´s  task  to  develop  the  European  area  of 
justice  in  civil  matters  based  on  principle  of  mutual  trust  and  mutual  recognition  of 
judgements.  This  area  of  justice  requires  judicial  cooperation  over  the  borders.  For  this 
purpose, and for the proper functioning of the internal market, the EU has adopted legislation 
on cooperation in taking of evidence. It is a crucial instrument to regulate judicial assistance 
in  civil  and  commercial  matters  between  the  Member  States.  Its  purpose  is  to  provide  an 

89 Denmark does not take part in the adoption and application of EU actions taken under Article 81 of the TFEU.  
90 This selection covered: Different geographical areas of the EU; Larger and smaller, Western and Central, 

Nordic and Southern EU Member States; Member States at different stages of economic development; 58% 
of the EU’s overall GDP; 52% of all EU businesses (incl. SMEs);   62% of the EU’s overall population. 

91  

3 

 
 
 
                                                            
 
efficient  framework  for  cross-border  judicial  cooperation.  It  has  replaced  the  earlier 
international,  more  cumbersome  system  of  the  Hague  convention  of  18  March  1970  on  the 
taking of evidence abroad in civil and commercial matters92 between the Member States. 

The  Regulation  applies  in  all  Member  States  with  the  exception  of  Denmark.  As  regards 
Denmark,  the  Hague  Convention  is  applicable.  However,  not  all  Member  States  have  (yet) 
ratified or acceded to this Convention. 

The core objective of Regulation (EC) 1206/2001 is thus to facilitate the process of taking of 
evidence in another Member State. 

According to Art. 1, the Regulation applies in civil or commercial matters, where a court in 
one Member State: 

  Requests the competent court of another Member State to take evidence, or 
  Requests to obtain evidence directly in another Member State. 

The Regulation only applies if the evidence is intended for use in judicial proceedings already 
initiated or contemplated. This includes the taking of evidence before the actual submission 
of the case in which the evidence is to be used, e. g. where evidence is needed that would not 
be available at a later date. 

The  Regulation  does  not  prevent  agreements  from  being  maintained  or  concluded  between 
two or more Member States with a view to further accelerating or simplifying the processing 
of  requests  for  judicial  documents  (Art.  21).  More  specifically,  the  application  of  the 
Regulation  is  not  mandatory.  National  legislation  can  be  applied  if  this  is  expected  to  be  a 
faster  or  simpler  way  to  obtain  the  relevant  evidence.  Evidence  can  also  be  taken  through 
diplomatic  channels.  Compared  to  the  Hague  Convention,  the  system  of  transmission  of 
requests  established  in  the  Regulation  is  faster  and  more  efficient  because  requests  are 
transmitted  directly  between  courts,  and  do  not  involve  central  bodies  like  in  the  Hague 
Convention.  Furthermore,  the  Regulation  (Article  17)  foresees  also  the  direct  taking  of 
evidence  abroad,  a  possibility  not  existing  under  the  Hague  system.  It  should  be  noted  that 
this evaluation only refers to the cross-border taking of evidence under the Regulation, and 
not under the Hague Convention or national law. 

In  Figure  1  below  the  intervention  logic  of  Regulation  (EC)  1206/2001  is  presented.  The 
outline of the intervention logic serves to identify and link the needs/problems the Regulation 
set out to address at the time of its adoption with general, specific and operational objectives, 
as well as inputs and activities foreseen under the Regulation. It also identifies the expected 
results and impacts. 

92 The Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters. 

4 

 
 
 
                                                            
 
Figure 1: Evidence Regulation – Intervention Logic 

5 

 
 
 
2.2 

Functioning of the Regulation 

The Member States must draw up a list of the courts that are competent for taking evidence in 
accordance  with  the  Regulation  (Art.  2).  This  list  also  specifies  the  local  jurisdiction.  In 
addition,  it  is  stipulated  in  Art.  3  that  each  Member  State  should  designate  one  or  more 
central authorities to provide the courts with information and to seek solutions if there are any 
difficulties  with  a  request.  In  exceptional  cases,  the  central  authority  is  also  competent  to 
forward a request to the competent court. 93 

The Regulation provides for two different procedures on how evidence can be taken, which 
are presented in Figure 2: 

The  court  of  one  Member  State  requests  a  court  of  another  Member  State  to  take 

• 
evidence; or 

• 

Direct taking of evidence. 

In  both  cases,  the  Regulation  provides  for  the  possibility  that  the  court  which  is  not 
competent to take evidence may nevertheless be involved in the taking of evidence (Art. 12 
and  17).  This  may  even  mean  that  the  court,  which  is  not  competent  to  take  evidence  but 
participates, may ask questions to a witness in an oral hearing if the competent court assents. 

Since the Regulation is meant to facilitate the taking of evidence and does not exclude the use 
of other channels it is also possible for courts to take evidence outside the framework of the 
Regulation on the basis of national law. 

93 Member States with autonomous territorial units, with a federal system, or with several legal systems can set 

up more than just one such competent authority. 

6 

 
 
 
 
                                                            
Figure 2: Workflow of Regulation (EC) 1206/2001 

7 

 
 
 
 
 
2.3 

Request to a court of another Member State to obtain evidence 

The Regulation is based on the general principle of direct transmission between courts. This 
means that the request for the taking of evidence is to be sent directly by the requesting court 
(the court before which the proceedings are conducted or planned) to the requested court (the 
court of the Member State which collects evidence). 

According to Art. 4, the request must meet certain criteria with regard to its form and content. 
For this purpose, the Regulation provides forms94 for: 

  Acknowledging receipt of the request, 
  Requesting additional information about the request, and 
  Executing the request. 

Art.  5  of  the  Regulation  requires  that  the  request  is  made  in  the  official  language  of  the 
requested court or in another language accepted by the requested Member State. Documents 
which, in the opinion of the requesting court, are to be annexed to the request must therefore 
be accompanied by a translation into the language in which the request is drawn up. 

To  ensure  swift  communication  between  the  courts,  Art.  6  stipulates  that  all  appropriate 
means  are  permitted  which  are  in  accordance  with  the  law  of  the  requested  Member  State. 
According to Art. 7, the requested competent court is obliged to send an acknowledgement of 
receipt to the requesting court within seven days of the receipt of a request 95.  

The requested evidence then has to be obtained by the requested court at latest within 90 days 
of receipt. If this is not possible, the requested court has to inform the requesting court and 
give the reasons (Art. 10).  

According to Art. 14, the execution of a request can only be refused if: 

 

It  does  not  fall  within  the  scope  of  the  Regulation  (e.g.  if  criminal  proceedings  are 
concerned and not civil or commercial proceedings); 

  The execution of the request does not fall within the jurisdiction of the court; 
  The request is incomplete; 
 

If the person to be heard invokes his/her right to refuse to testify or a valid prohibition 
of making statements; 

  The deposit has not been deposited or the advance has not been paid. 

If the execution of the request is refused, the requested court must inform the requesting court 
thereof within 60 days of receipt of the request. 

As provided for in Art. 10, the Regulation allows evidence to be obtained by using modern 
communications  technologies,  especially  such  as  video-  or  teleconferences.  The  requested 
court  must  comply  with  such  a  request,  unless  it  is  (a)  incompatible  with  the  law  of  the 

94 The forms can be found in the Annex of the Regulation. 
95 The requested court shall use form B in the Annex of the Regulation. 

8 

 
 
 
                                                            
Member  State  of  the  requested  court  or  (b)  impossible  because  of  serious  technical 
difficulties.  If  one  of  the  courts  concerned  does  not  have  access  to  the  above-mentioned 
technical means, they may be made available by the courts by mutual agreement. 

To  the  extent  permitted  by  the  law  of  the  Member  State  of  the  requesting  court,  the 
representatives of the requesting court have the right to be present when the requested court 
carries  out  the  requested  act.  The  parties  and,  where  appropriate,  their  representatives  may 
also  be  present.  The  requested  court  must  inform  the  parties  and  any  representatives  of  the 
date, time and place of the taking of evidence and is also to examine under what conditions 
the participation is admissible (Art.11). 

2.4   Direct taking of evidence 

A court can also request to take the evidence directly in another Member State. This request 
is to be transmitted to the central or competent authority of the requested Member State (Art. 
17). This authority then decides whether it grants or denies the requested authorisation. The 
request  for  the  direct  taking  of  evidence  is  only  admissible  if  it  can  be  carried  out  on  a 
voluntary basis without coercive measures. 

The  central  or  competent  authority  of  the  requested  Member  State  must,  within  30  days  of 
receipt  of  the  request,  indicate  whether  the  request  can  be  granted  and,  if  necessary,  under 
what conditions the request can be dealt with in accordance with the law of its Member State.  

The evidence must be gathered by a competent judicial officer or by other competent persons, 
in accordance with the law of the Member State of the requesting court. 

2.5 

Costs relating to the taking of evidence 

According to Art. 18, it is not allowed to require reimbursement of fees or expenses for the 
execution  of  a  request  as  such.  However,  if  the  requested  court  so  requests,  the  requesting 
court must ensure that certain types of expenses are provided without delay: 

• 

Expenses for experts and interpreters, and 

Expenses incurred for special procedures for the taking of evidence requested by the 

• 
requesting court (Art. 10) 

Only in cases where an expert opinion is required can the requested court ask for an advance 
payment of the expert’s costs. 

9 

 
 
 
 
 
 
3. 

IMPLEMENTATION / STATE OF PLAY 

The  study96  described  under  point  4.  made  the  below  estimations  concerning  the 
implementation  of  the  Regulation  in  quantitative  terms.  Both  a  bottom-up  and  a  top-down 
approach  were  used  to  estimate  the  respective  data.  A  bottom-up  approach  means  that  the 
estimates are largely based on available Eurostat data or data from national statistical offices, 
as well as qualitative/quantitative information available in secondary sources. The number of 
legal  proceedings  has  been  estimated  based  on  this  data  and  respective  assumptions.  In 
contrast,  the  top-down  approach  uses  quantitative  information  available  through  the CEPEJ 
database on the overall number of legal proceedings and attributes the individual case load to 
specific  types  of  legal  proceedings  based  on  assumptions.  In  addition  to  these  sources,  the 
estimates draw on expert assumptions, e.g. in relation to the share of legal proceedings that 
relate to cross-border cases, or qualitative information gathered as part of the interviews, e.g. 
approx. share of cases in which Regulation (EC) 1206/2001 was applied. 

  Application of the Regulation: 

o  It is estimated that in the year 200 there were up to 145,000 legal proceedings 

across all EU Member States in which the Regulation was applied;97 

o  Until  2017,  this  number  is  expected  to  have  increased  to  up  to  168,000  per 

annum (i.e. +16%); 

o  It  is  estimated  on  that  basis  that  Regulation  (EC)  1206/2001  was  applied  in 
0.5%  to  5%  of  all  cross-border  legal  proceedings  in  civil  and  commercial 
matters between 2001 and 2017.This needs to be put in perspective as in the 
vast  majority  of  civil  and  commercial  proceedings  no  evidence  needs  to  be 
taken,  e.g.  because  these  are  summary  proceedings,  the  defendant  does  not 
enter  an  appearance  and  a  default  judgment  can  be  issues,  because  parties 
decide  to  settle  or  because  a  decision  can  be  made  without  investigating 
disputes on facts. Thus, with the assumption98 that evidence needs to be taken 
in no more than around 10 % of civil cases as a general rule,99 the Regulation 
would  be  estimated  to  be  used  in  5  -  50%  of  cross-border  cases  where 
evidence is taken. It also needs to be taken into account however that even in 
cross-border litigation, i.e. where the parties are in different Member States the 

96 JUST/2017/JCOO/FW/CIVI/0087 (2017/07). 
97 This estimate of the Deloitte study is based on available Eurostat data, data from national statistical offices, 
qualitative/quantitative information available in secondary sources, quantitative information available 
through the CEPEJ database on the overall number of legal proceedings, expert assumptions in relation to 
the share of legal proceedings that relate to cross-border cases, and qualitative information gathered as part 
of the interviews. See for more detail point 3. of the evaluation report. 

98 This assumption was considered realistic by experts in the Commission's expert group.  
99 Estimation of a member of the Expert Group on Modernisation of Judicial Cooperation in Civil and 

Commercial Matters. In this context, it should be noted that in approximately 70 % of all cases, default 
judgements are delivered (see Evaluation of Service of Documents Regulation, p. 37). 

10 

 
 
 
 
 
 
                                                            
necessary evidence can be taken in the Member State where the proceedings 
are    pending  (e.g.  the  witness  is  domiciled  in  the  Member  State  where 
proceedings  are  pending)    so  that  the  taking  of  evidence  is  not  of  a  cross-
border nature and does not fall within the scope of the Regulation. This would 
advocate in favour of the assumption that the cases in which evidence has to 
be taken across borders is in the upper area of the range indicated above, being 
closer to the 50% mark than to the 5% mark. As stated earlier, even in a cross-
border  context  the  Regulation  is  not  exclusive  but  optional  and    allows  the 
taking of evidence by channels other than those of the Regulation on the basis 
of  national  law  where  the  court  considers  that  a  simpler  or  more  efficient 
solution100.  The  remaining  cases  of  cross-border  taking  of  evidence  not 
processed under the Regulation are therefore assumed to be dealt with under 
national  law  which  is  often  more  convenient  for  courts  to  apply  but  has 
significant  shortcomings  as  it  is  usually  limited  to  voluntary  cooperation  (as 
no enforcement measures can be taken against a witness abroad who does not 
appear in a court hearing). 

  Types of cases in which the Regulation was applied (2001-2017): 

o  Approximately  half  of  the  cases  in  which  the  Regulation  was  applied  related  to 
legal  proceedings  concerning  contractual  obligations  in  B2B/B2C  contexts  (e.g. 
payments and claims, product liability, conformity with contract, contract terms); 

o  Cross-border successions and wills account for about 13%; 

o  Property  transactions  and  legal  proceedings  concerning  the  compensation  for 

damages relate to about 13%; 

o  Legal  proceedings  concerning  divorces, 

legal  separations,  and  parental 
responsibility account for approximately 6% of the cases in which the Regulation 
was applied; 

o  About 2% of all legal proceedings in which the Regulation was applied concerned 

insolvencies of businesses with cross-border elements. 

  Methods of taking of evidence: 

o  It is estimated that the method of direct taking of evidence was used in 5%-20% 

(i.e. on average 12.5%) of all cases in which the Regulation was applied. 

o  In 80% to 95% (i.e. on average 87.5%) the courts of another Member State were 

requested to obtain the evidence.  

100 There are no reliable figures available on the percentage of cases out of all cases in which evidence is taken 

or on the number of cases in which the taking of evidence in a cross-border scenario is based on national 
law rather than on the Regulation.  

11 

 
 
 
 
 
 
 
 
 
 
 
                                                            
4.  METHOD 

This  evaluation  is  based  on  a  study  to  support  the  preparation  of  an  evaluation  and  impact 
assessment for the modernisation of the judicial cooperation in civil and commercial matters 
prepared by Deloitte. This study in particular takes into account the answers to a broad scale 
on-line public consultation conducted by the Commission which received 131 replies.101   

For the study, the following other data collection tools were used: 

  Desk research 
  Strategic interviews  
  Online surveys 
  Fieldwork in 10 Member States 

  Telephone interviews in 5 Member States 
  Face-to-face interviews in 5 Member States. 

Strategic  interviews  were  conducted  with  staff  at  several  European  Commission’s  DGs,  as 
well as EU-level organisations and forua representing judicial professionals.  

The  online  surveys  carried  out  by  the  contractor  were  distributed  among  the  following 
stakeholder groups: 

  Central bodies: E.g. ministries at the federal (where relevant) and state levels;  
  Requested courts and other public bodies under Regulation (EC) 1206/2001; 
  Personnel  directly  involved  in  the  cases:  Judges,  prosecutors,  clerks,  diplomatic  or 
their  professional 

legal  counsels/aids,  bailiffs  (and 

lawyers, 

consular  agents, 
organisations). 

In total, 33 answers were received to the surveys, spread over these stakeholder groups and 
13  Member  States.  More  than  one  third  of  the  responses,  however,  came  from  Germany 
whereas  no  other  Member  State  exceeded  three  individual  responses  (apart  from  Portugal 
with  five).  Responses  were  received  from  stakeholders  in  the  following  Member  States: 
Cyprus, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, the Netherlands, 
Portugal,  Romania,  and  Sweden.  Feedback  was  obtained  from  Central  Bodies,  competent 
courts, and legal professionals in rather equal proportions. 

Fieldwork  was  carried  out  in  the  following  ten  Member  States:  Belgium,  Estonia,  France, 
Germany,  Greece,  Hungary,  Ireland,  Italy,  Romania  and  Sweden.102  In  these  countries, 

101 https://ec.europa.eu/info/consultations/public-consultation-modernisation-judicial-cooperation-civil-and-

commercial-matters-eu_en  

102 The Member States were selected based on the following criteria: Legal traditions in the Member States; no. 
of estimated incoming civil and commercial cases; no of judgements concerning the Regulation in the 
Unalex database; differences in relation to the national organisational and procedural set-ups, e.g. in 
relation to which types of stakeholders are able to serve documents under national law; Take-up of ICT / 
availability of electronic means in courts according to the 2017 EU Justice Scoreboard; Geographical 

12 

 
 
 
 
                                                            
 
interviews  with  central  bodies,  judicial  staff  (including  bailiffs),  lawyers  and  ICT  entities 
were conducted. In total, 65 interviews were carried out. 

Stakeholder consultations focused on the collection of new data. Existing data were leveraged 
as relevant. Based on the limitedt timeframe and in order not to overburden the stakeholders 
involved, individual stakeholders were only interviewed once: i.e. they were asked to provide 
information relating to both the evaluation and the impact assessment at the same time. An 
ongoing  gap  analysis  was  carried  out  towards  our  Analytical  Framework  and  impact 
assessment  methodology,  so  as  to  ensure  that  mitigation  action  could  be  taken  in  time  and 
where needed. 

The preparation of the evaluation involved:  

  Gathering evidence on the application of the Regulation;  
  Assessing the performance of the entire Regulation.  

As concerns the first point, in line with the Better Regulation Guidelines103, the starting point 
was to examine the status quo, including how the intervention has been implemented, which 
serves as a background to the evaluation. In this context, implementing legislation adopted by 
the Member States, Member States’ notifications on how the Regulation is applied (including 
e.g. the designation of relevant bodies) as well as which technological tools are permitted and 
used by the Member States in relation to the Regulation were considered.  

For  the  purpose  of  the  assessment  of  the  performance  of  the  Regulation  and  in  order  to 
provide  a  comprehensive  picture  of  the  situation,  the  evaluation  took  a  broad  view.  This 
included  among  others  looking  at  the  changes  the  Regulation  has  brought  about,  whether 
these  changes  were  those  intended,  and  whether  in  relation  to  related  initiatives,  the 
Regulation met its objectives and if these are still relevant.  

5.  ANALYSIS AND ANSWERS TO THE EVALUATION QUESTIONS 

This  section  presents  the  answers  to  the  evaluation  questions,  i.e.  effectiveness,  efficiency, 
relevance, coherence and EU added value of the Regulation.  

Effectiveness  analysis  considers  how  successful  EU  action  has  been  in  achieving  or 
progressing  towards  its  objectives.  The  evaluation  should  form  an  opinion  on  the  progress 
made to date and the role of the EU action in delivering the observed changes. 

Efficiency considers the relationship between the resources used by an intervention and the 
changes generated by the intervention (which may be positive or negative). Differences in the 
way  an  intervention  is  approached  and  conducted  can  have  a  significant  influence  on  the 

balance; and Economic representativeness in terms of the EU’s overall GDP, number of businesses 
(especially SMEs), and population. 

103 See p. 59.  

13 

 
 
 
 
                                                                                                                                                                                         
effects,  making  it  interesting  to  consider  whether  other  choices  (e.g.  as  demonstrated  via 
different  Member  States)  achieved  the  same  benefits  at  less  cost  (or  greater  benefits  at  the 
same cost).   

Relevance  looks  at  the  relationship  between  the  needs  and  problems  in  society  and  the 
objectives of the intervention and hence touches on aspects of design. Relevance analysis also 
requires a consideration of how the objectives of an EU intervention (legislative or spending 
measure) correspond to wider EU policy goals and priorities. Analysis should identify if there 
is  any  mismatch  between  the  objectives  of  the  intervention  and  the  (current)  needs  or 
problems. 

The  evaluation  of  coherence  involves  looking  at  a  how  well  or  not  different  actions  work 
together. It may highlight areas where there are synergies which improve overall performance 
or which were perhaps not possible if introduced at national level; or it may point to tensions 
e.g.  objectives  which  are  potentially  contradictory,  or  approaches  which  are  causing 
inefficiencies. 

EU-added  value  looks  for  changes  which  it  can  reasonably  be  argued  are  due  to  the  EU 
intervention, over and above what could reasonably have been expected from national actions 
by the Member States. 

5.1 

Effectiveness 

The  evaluation  of  the  effectiveness  of  Regulation  (EC)  1206/2001  concerns  the  degree  to 
which  the  objectives  of  the  Regulation  have  been  achieved.  This  analysis  considers  the 
operational, specific and general objectives of the Regulation as outlined in the intervention 
logic. 

• 
Operational objectives are defined in terms of the actions of an intervention and are 
measured  through  the  output  of  the  Regulation.  In  this  regard,  indicators  measuring  the 
quantity/quality of what has been produced by the Regulation are assessed (e.g. the efficiency 
of  service  across  borders,  use  of  rapid  means  for  service  and  security  levels  of  service 
methods). 

• 
Specific  objectives  are  defined  in  terms  of  the  concrete  achievements  of  the 
intervention  within  the  specific  policy  domain  and  are  measured  in  terms  of  outcome 
indicators. In this regard, indicators measuring the outcome of the Regulation in terms of the 
impact on cross-border civil and commercial proceedings are assessed. 

General objectives are Treaty-based goals which the policy aims to contribute to and 
• 
looks at “the bigger picture”. To assess the achievement of these goals impact indicators are 
used (e.g. extent to which the Regulation contributes to the Internal Market objectives, trust 
across EU in judicial systems and fundamental rights in the EU). 

14 

 
 
 
 
Overall,  it  can  be  concluded  that  the  implementation  of  Regulation  (EC)  1206/2001  has 
resulted  in  some  clear  improvements  concerning  the  efficacy  of  cross-border  taking  of 
evidence. This said, according to the evidence gathered, the Regulation has only been applied 
in a limited proportion of cross-border cases (as it is non-mandatory in nature and its use is 
not  necessary  in  all  cases)  and  has  therefore  achieved  its  general,  specific  and  operational 
objectives only partly.  

By  means  of  summary,  Table  1  provides  the  main  findings  concerning  the  effectiveness  of 
the Regulation in achieving each of the three types of objectives.  

Table 1: Summary of the assessment of effectiveness by objective 

Level 

Objective 

Assessment of the effectiveness of the Regulation  

To 
the 
ensure 
smooth  functioning 
Internal 
of 
Market 

the 

General 

To  ensure  trust  in 
the judicial systems 
of 
the  Member 
States and the EU  

the 

functioning  of 

Regulation  (EC)  1206/2001  has  contributed  to  the 
internal  market  by 
smooth 
establishing common procedures for taking evidence in 
cross-border  proceedings  and  facilitating  cross-border 
judicial  proceedings,  thus  contributing  to  ensuring  a 
level  playing  field  for  citizens  and  businesses  in 
different  Member  States.  The  burden  for  citizens  and 
businesses,  including  costs  and  delays  associated  with 
cross-border  proceedings,  has  also  been  reduced  this 
way. 
The  application  of  Regulation  (EC)  1206/2001  has 
contributed  to  building  and  ensuring  trust  of  citizens, 
businesses and legal practitioners in the judicial systems 
of  the  Member  States  and  the  EU.  Based  on  the  free 
movement of persons, goods, services and capital, cross-
border  transactions  between  citizens  and  businesses 
increase,  also  possibly  leading  to  cross-border  judicial 
proceedings in case of difficulties. The Regulation helps 
ensuring  that  such  proceedings  can  be  handled  with  a 
limited  burden  for  citizens  or  businesses,  be  it  as  a 
witness or a party.  

To 
that 
ensure 
fundamental  rights 
are  safeguarded  in 
the EU 
To  further  improve 
the  efficiency  and 
judicial 
speed  of 
procedures, 

The Regulation facilitates the participation of the parties 
in the taking of evidence, access to justice and the right 
to be heard.  

Regulation  (EC)  1206/2001  has  contributed  to  more 
efficient  cross-border  proceedings.  It  has  stipulated 
deadlines  and  workflows  for  communication  and 
execution  of  requests.  In  addition,  direct  court-to-court 

Specific 

15 

 
 
 
 
Level 

Objective 

Assessment of the effectiveness of the Regulation  

including by:  
-  Simplifying 

communication 
administration of cases with cross-border implications.  

improve 

helped 

has 

to 

the 

- 

and 
accelerating 
cooperation 
mechanisms 
Improving 
administration 
justice 
of 
cases 
cross-border 
implications 

the 

in 
with 

To  improve  access 
by 
justice 
to 
reducing  costs  of 
the 
judicial 
procedures 

the 
To 
improve 
the 
protection  of 
procedural rights of 
the  addressees  and 
of the parties to the 
proceedings 
To 
the 
reduce 
burden  for  citizens 
and 
businesses 
involved  in  cross-
border proceedings 
the 
improve 
To 
cooperation 
between  the  courts 
on  the  taking  of 
in  civil 
evidence 
and 
commercial 
matters 
To  ensure  that  the 
most  rapid  means 
the 
are  used  for 
and 
transmission 
of 
execution 

Operatio
-nal 

The  right  of  access  to  justice  and  the  right  to  be  heard 
are strengthened in the cases in which the Regulation is 
applied successfully. It facilitates the participation of the 
parties  in  the  taking  of  evidence.  In  addition,  common 
approaches to the taking of evidence may contribute to a 
larger  likelihood  for  mutual  recognition  of  judgments 
within the EU. 

The  Regulation  contributed  to  the  protection  of  the 
procedural  rights  of  citizens  and  businesses.  Room  for 
improvement  was  reported  concerning  delays  and 
potential costs currently arising from difficulties relating 
to the design of the Regulation and its application 

The Regulation has reduced the burden for citizens and 
businesses  when  applied  successfully.  However,  this 
effect  is  limited  if  delays  occur  (leading  to  additional 
costs or burdens for citizens and businesses). 

reduce 

the  effective  application  of 

The  Regulation  has  established  common  channels  and 
standardised  procedures  that  help  to  obtain  evidence  in 
cross-border  cases.  However,  delays  and  language 
the 
barriers 
Regulation.  Hence,  while  some  improvements  have 
been evidenced, the full potential of the Regulation has 
not yet been achieved. 
The use of modern technologies under the Regulation is 
possible  in  principle,  but  depends  on  the  technical 
feasibility and availability in the Member States, as well 
as provisions under national procedural law. Therefore, 
the  effect  of  the  Regulation  on  the  uptake  of  modern 

16 

 
 
 
Level 

Objective 

Assessment of the effectiveness of the Regulation  

technologies is neutral.  

for 

requests 
the 
taking  of  evidence, 
including  modern 
technologies 

The  Regulation  introduced  standard  forms  so  that 
requests can be decided upon and executed faster. These 
forms  are  welcomed  by  practitioners  and  considered 
very useful. Some limitations in the practical use of the 
forms have, however, been identified, e.g. due to the use 
of translation tools without a proper review process. The 
Regulation further specifies deadlines for the processing 
and  execution  of  requests.  In  practice,  delays  in 
communication and execution of requests were reported. 
Thus  despite  some  progress 
for 
improvement  as  concerns  the  expeditious  execution  of 
requests. 
The Regulation introduced a standardised procedure for 
taking  evidence  directly  in  another  Member  State. 
Stakeholders  emphasised  the  attractiveness  of  direct 
taking of evidence, e.g. via videoconferencing. 

room 

there 

is 

for 

ensure 

that 
To 
requests 
the 
taking  of  evidence 
executed 
are 
expeditiously 

facilitate 

the 
taking  of 

To 
direct 
evidence 

5.1.1  Achievement of the general objectives of the Regulation 

The Regulation was adopted to:  

  Ensure the smooth functioning of the area of freedom, security and justice, including by:  
o  Strengthening the trust in the in the judicial systems of the Member States and the EU; 
o  Safeguarding fundamental rights in the EU.  

  Ensuring the smooth functioning of the internal market.  

While  there  is  still  room  for  improvement,  the  Regulation  does  contribute  to  an  area  of 
freedom, security and justice and a smooth functioning of the internal market. When applied 
successfully,  it  increases  mutual  trust  between  courts  and  helps  to  reduce  the  burden  for 
citizens and businesses engaged in cross-border proceedings.  

It  does  so  by  introducing  useful  means  for  the  taking  of  evidence  in  cross-border  cases.  It 
helps to make communication between courts more efficient in cases evidence has to be taken 
by a competent in another Member State and facilitates the direct taking of evidence, which 
can  be  a  very  efficient  channel  in  certain  situations.  If  carried  out  smoothly,  both  these 
methods  also  help  to  increase  mutual  trust  between  courts,  as  courts  communicate  more 
directly and work together. In addition, trust by citizens and businesses in the legal systems 

17 

 
 
 
 
 
of the Member States may be improved if they have positive experiences with cross-border 
taking of evidence.  

This way, the functioning of cross-border proceedings is improved, which has positive effects 
on the area of freedom, security and justice, because, for instance, access to justice and the 
protection of the rights of the parties are improved.  

In addition, the burden for citizens and businesses, including costs and delays associated with 
cross-border proceedings, is reduced. This has positive impacts on both the area of freedom, 
security and justice and the internal market. Based on the free movement of persons, goods, 
services and capital, cross-border transactions between citizens and businesses increase, also 
possibly  leading  to  cross-border judicial proceedings in  case of difficulties.  The Regulation 
helps ensuring that such proceedings can be handled with a limited burden for businesses or 
citizens, be it as a witness or party.  

However,  the  Regulation  has  not  yet  reached  its  full  potential  in  terms  of  achieving  these 
objectives,  including  due  to  some  of  the  practical  and  legal  issues  identified  as  well  as  the 
somewhat limited uptake.  

5.1.2   Achievement of the operational objectives 

This chapter assesses in more detail the degree to which the following operational objectives 
of Regulation (EC) 1206/2001 have been achieved: 

• 

• 

• 

• 

To improve the cooperation between the courts on the taking of evidence in civil and 
ecommercial matters; 

To  ensure  that  the  most  rapid  means  are  used  for  the  transmission  and  execution  of 
requests for the taking of evidence, including modern technologies; 

To ensure that requests for the taking of evidence are executed expeditiously; 

To facilitate the direct taking of evidence. 

The evaluation of the achievement of the operational objectives is structured in line with the 
workflow of the Regulation. 

5.1.2.1 Preparation of the request and the taking of evidence 

Stakeholders deciding on the most efficient method for taking evidence across borders have 
three options. They can use:  

(1) Taking  of  evidence  through  a  competent  court  in  another  Member  State  (“indirect” 

taking of evidence; Articles 10-16)  

(2) Direct taking of evidence (Article 17); and  
(3) Other means for taking evidence (applying either national law or other EU rules). 

18 

 
 
 
 
The Regulation does not contain any provision governing or excluding the possibility for the 
court in one Member State to summon a party residing  in another Member State to appear 
and make a witness statement directly before it. Therefore, the Regulation applies only if the 
court  of  a  Member  State  decides  to  take  evidence  according  to  one  of  the  two  methods 
provided for in the Regulation. The competent court of a Member State can also summon as 
a witness a party residing in another Member State and to hear him in accordance with its 
national  law.104  Under  certain  circumstances,  in  particular  if  the  party  summoned  as  a 
witness is prepared to appear voluntarily, it may be simpler, more effective and quicker for 
the competent court to hear him in accordance with the provisions of its national law instead 
of using the means of taking evidence provided for by the Regulation, as stakeholders report.  

The results of the open public consultation carried out by the European Commission indicate 
that the scope of the Regulation is not always clear (see Table 2 below). Almost half of the 
respondents  (45%)  confirmed  that  it  is  not  difficult  to  determine  what  methods  to  use. 
However, around a quarter (26%)  found this difficult. Close to  30%  of the respondents  did 
not provide an answer.  

Table 2: Reported difficulties to determine when the Regulation and its channels have 
to be applied  

Statement:  It  does  not  pose  any  difficulty  to  decide  when  I  have  to  apply  the  methods 
foreseen in the Regulation on taking of evidence in another Member State. 
Count 
Response 
13 
Strongly agree 
27 
Tend to agree 
21 
Tend to disagree 
2 
Strongly disagree 
25 
Do not know/ No opinion 
88 
Total 
Source: Open public consultation by the European Commission 

Percentage 
14.8% 
30.7% 
23.9% 
2.3% 
28.4% 
100% 

The interviewees consulted frequently cited several potential sources of confusion. First, the 
concept  of  “civil  and  commercial  matters”  specified  in  Article  1  is  being  interpreted 
autonomously and in a wide sense.105 Second, and in line with the somewhat limited uptake 
of  the  Regulation,  legal  practitioners  reported  limited  experience  in  using  the  Regulation. 
Moreover,  the  limited  use  of  the  Regulation  can  be  viewed  to  have  a  “snowball  effect”,  in 
that  several  practitioners  consulted  stated  that  they  consider  it  to  be  complicated  and 
cumbersome to recall the requirements and provisions of the Regulation and be aware of the 

104 CJEU 06.09.2012 - C-170/11 - Lippens/Kortekaas, unalex EU-532 
105 However, as this concept is being used in many other Regulations in the field of judicial cooperation in the 
EU and extensive case law of the CJEU as concerns its interpretation exists, it has not caused particular 
difficulties so far. 

19 

 
 
 
 
 
 
                                                            
recent  relevant  case  law,  which  leads  to  a  preference  to  take  evidence  under  national  law 
outside  the  Regulation.  While  sustained  training  and  additional  guidance  has  helped  legal 
practitioners  (e.g.  in  Estonia),  the  general  workload  was  stated  to  reduce  the  motivation  to 
follow developments surrounding Regulation (EC) 1206/2001.  

Additional  deterrents  cited  by  interviewees  were  concerns  that  communication  with  central 
bodies and competent courts may be more complicated than using existing consular channels 
or  relying  on voluntary provision of written testimonies in  form of affidavits  by the parties 
involved. Overall, national means were reported to be “just as effective” and sometimes more 
efficient to obtain the results. 

In those cases where Regulation (EC) 1206/2001 is applied, interviewees welcome it as one 
option to take evidence across borders and appreciate the standardised procedures it provides. 
For  citizens  and  businesses  involved  in  cross-border  proceedings,  these  standardised 
procedures have made it more likely that the taking of evidence can be handled in an efficient 
manner.  

The objective to promote direct taking of evidence was partially achieved. Estimates suggest 
that courts use the channel of direct taking of evidence (Article 17) in 12% of the cases where 
Regulation (EC) 1206/2001 was applied.106 The possibility to take evidence directly in other 
Member  States  guarantees  courts’  freedom  of  choice  in  relation  to  the  most  appropriate 
means  to  take  evidence  across  borders.  Direct  taking  of  evidence  in  cross-border  cases  is 
strongly  favoured  in  Member  States  such  as  Sweden,  Portugal  and  Austria.  However,  most 
other Member States prefer the indirect method of taking evidence through requested courts 
in  another Member State. The stakeholders consulted provided three recurring reasons  why 
legal practitioners decide against using the direct method of taking evidence.  

First,  interviewees  stated  that  effectiveness  is  undermined  because  the  procedure  is 
necessarily non-coercive. It is dependent on the voluntary participation of those who provide 
the  evidence,  which  is  not  always  assumed  to  be  given.  Second,  the  expected  coordination 
efforts  required  to  plan  the  process  of  direct  taking  of  evidence  were  cited  as  a  deterrent. 
Stakeholders explained that the process is seen as burdensome and possibly complicated. For 
instance,  the  requesting  court  has  to  coordinate  appointments  for  hearings,  and  reimburse 
witnesses  abroad.  Interviewees  commonly  shared  the  view  that  requested  courts  in  other 
Member  States  are  better  placed  to  organise  the  taking  of  evidence.  Third,  stakeholders 
expressed concerns about possible additional costs if witnesses fail to appear for a physical 
appointment or a hearing via video-conferencing. Stakeholders were in particular concerned 
about  additional  costs  for  unnecessary  travel  expenses,  fees  for  interpreters  and  video-
conferencing facilities or simply delays as a result. In case evidence is taken by a requested 
court,  on  the  other  hand,  the  requesting  court  only  has  to  file  the  request  and  wait  for  the 
reply but not engage with parties affected in other Member States. 

106 The estimates made as part of the present assignment suggest that direct taking of evidence was used in less 
than 1% of all cross-border proceedings in the EU during the timeframe assessed as part of the Evaluation. 

20 

 
 
 
                                                            
The  results  of  the  European  Commissions’  open  public  consultation  confirmed  these 
findings;  a  majority  of  stakeholder  expressed  a  preference  to  take  evidence  through  a 
competent court in another Member State (Articles 10-16), as illustrated in 3.  

Table  3:  Preference  for  using  Articles  10-16  for  the  taking  of  evidence  by  legal 
professionals  

Statement: I prefer taking of evidence through a requested court in another Member State, 
pursuant  to  Article  2  of  Regulation  (EC)  1206/2001,  to  the  direct  method  of  taking  of 
evidence (as foreseen in Article 17 of the Regulation). 

Response 

Count 

Percentage 

Strongly agree 
Tend to agree 
Tend to disagree 
Strongly disagree 
Do not know/ No opinion 
Total 
Source: Open public consultation by the European Commission 

21 
26 
11 
4 
25 
87 

24.1% 
29.9% 
12.6% 
4.6% 
28.7% 
100.0% 

Following the decision on the method to use in order to take evidence, the requesting court 
has  to  identify  the  competent  court  for  taking  evidence  in  accordance  with  Article  2.  The 
findings from the open public consultation suggest that identifying the competent court does 
not  constitute  a  challenge.  The  vast  majority  of  respondents  agreed  or  strongly  agreed 
(overall 70%) with the statement that finding a competent court is easy (see Table 4 below). 
The  stakeholders  consulted  as  part  of  interviews  explained  that  the  available  lists  of 
competent  courts  and  central  authorities (drawn up  by  the  Member  States)  and the  eJustice 
Portal  are  useful  sources  in  this  process.  The  European  Judicial  Network  in  civil  and 
commercial matters (EJN) was named as a further, more informal source of information for 
judicial staff by legal practitioners. 

21 

 
 
 
 
 
Table 4: Findability of authorities competent for taking of evidence in another Member 
State  

Statement: It is easy to identify the agency (court) or the competent authority in another 
Member State which is designated to provide judicial assistance in taking evidence. 

Response 

Count 

Percentage 

Strongly agree 
Tend to agree 
Tend to disagree 
Strongly disagree 
Do not know/ No opinion 
Total 
Source: Open public consultation by the European Commission 

23 
38 
10 
0 
17 
88 

26.1% 
43.2% 
11.4% 
0.0% 
19.3% 
100.0% 

Some of the interviewees pointed out problems identifying the competent court. Significant 
challenges were  stated  to  have  been  encountered  by  stakeholders in  Belgium  and  Hungary. 
For  instance,  the  lists  of  competent  courts  provided  by  the  Member  States  were  sometimes 
not clear and understandable. Furthermore, the definition of requesting courts was reported to 
be  interpreted  very  narrowly  in  some  Member  States.  One  stakeholder  from  Hungary 
explained  that  requests  by  notaries  acting  in  a  “court-like  capacity”  were  not  recognised  in 
another  Member  State.  As  a  result, a  standard  letter  explaining  the  status  of  notaries  in  the 
Hungarian legal system is attached to requests, which has helped to facilitate the process. In 
both cases (lists of competent courts and definition of requesting courts), the definitions and 
information requirements specified in the Regulation were not considered as clear, reducing 
its effectiveness.  

Overall,  the  introduction  of  standard  forms  has  been  beneficial,  as  they  enable  the 
stakeholders to file requests that are complete and to the point, and help to limit efforts for 
drafting and translating requests. However, interviewees shared the view that stakeholders in 
some  Member  States  seem  to  face  challenges  in  completing  and  translating  the  forms  for 
requests. For instance, the use of online translation tools without any further check of correct 
translations  was  repeatedly  cited  as  a  problem  by  interviewees.  In  addition,  instances  were 
reported  in  which  requests  were  short  and/or  imprecise.  These  challenges  may  ultimately 
reduce  the  effectiveness  (as  well  as  efficiency)  of  procedures,  as  requests  may  be 
misunderstood and wrongly executed.  

5.1.2.2 The request  

After deciding on the method of taking evidence and making a request, the request has to be 
communicated  to  the  requested  court  (using  Form  A)  or  the  central  body  (using  Form  I). 

22 

 
 
 
 
 
 
Interviewees repeatedly mentioned that the possibility of court-to-court communication under 
the Regulation is considered to be an improvement compared to the Hague Convention or in 
relation  to  third  countries.  However,  the  objective  to  use  the  most  rapid  means  for  the 
transmission  and  execution  of  requests  (including  modern  technologies)  is  at  best  partially 
achieved.  

Table 5 provides an overview of the permitted means of communication to transmit requests. 
A  majority  of  courts  only  allow  paper-based  requests  via  post  or  fax:  In  24  of  26  Member 
States,  postal  service  (including  couriers)  is  accepted,  whereas  23  Member  States  accept 
requests via fax machine. Only six Member States accept requests via email in general and 
another  five  Member  States  accept  emails  for  certain  types  of  requests  or  communications. 
Other  means  of  communication,  such  as  telephone,  are  hardly  accepted.  While  requests  by 
postal  service  may  be  effectively  transmitted  to  the  requested  court,  postal  services  are 
neither the fastest method available nor contributing to the uptake of modern technologies.  

Table  5:  Overview  of  means  for  transmission  of  requests  and  other  communications 
accepted (or partially accepted) in different Member States (Art. 6) 

Member State 

Postal  service 
(incl. couriers) 
X 
Belgium 
X 
Bulgaria  
X 
Croatia  
Cyprus 
X 
Czech Republic  X 
Estonia  
X 
Finland 
X 
X 
France 
X 
Germany 
X 
Greece 
Hungary 
X 
Ireland  
X 
X 
Italy  
Latvia  
X 
Lithuania  
X 
Luxembourg  
X 
Malta  
X 
Netherlands 
Poland  
Portugal  
Romania 
Slovakia  
Slovenia 
Spain 
Sweden  

X 
X 
X 
X 
n/a 
X 
X 

Fax 

Email 

Telephone  Other 

X 
X 
(x) 
X 
X 
X 
X 
X 
X 
X 
X 
X 
X 
X 
X 
X 
X 
X 

X 
X 
(x) 
n/a 

X 

(x) 

x 
x 
x 
(x) 
(x) 
(x) 
x 
x 

x 

n/a 

23 

(x) 

(x) 

n/a 

(x) 

n/a 

(x) 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Member State 

Postal  service 
(incl. couriers) 

Fax 

Email 

Telephone  Other 

United Kingdom  X 
24 
Total 
Source: e-Justice Portal / Judicial Atlas. For the countries marked (x), limitations to the use 
of the relevant means for transmission have been identified. 107 

(x) 
20 / (3) 

(x) 
6 / (5) 

(2) 

(2) 

Table  6  below  shows  that  stakeholders  have  had  different  experiences  as  concerns  the 
possibility  to  send  documents  related  to  the  taking  of  evidence  using  electronic  means  of 
communications. The same share of respondents stated that it was possible to use electronic 
means to send documents as the share that stated the opposite (16% and 14% respectively). It 
can be noted that the vast majority of respondents (70%) did not provide their opinion on this 
question. A majority of respondents to the open public consultation also indicated that they 
are members of the judiciary or courts. Consequently, this number suggests that practitioners 
overall  have  limited  experience  in  communicating  with  courts  in  other  Member  States  via 
electronic means.  

Table 6: Reported ability to use electronic means of communication 

Statement:  It  was  not  possible  to  send  documents  related  to  taking  of  evidence  to  the 
designated agency of another Member State via electronic means of communication. 

Response 

Strongly agree 
Tend to agree 
Tend to disagree 
Strongly disagree 
Do not know/ No opinion 
Total 
Source: European Commission open public consultation 

Count 

Percentage 

7 
7 
8 
4 
62 
88 

8.0% 
8.0% 
9.1% 
4.5% 
70.5% 
100.0% 

Furthermore, the acknowledgement of receipt of a request (Form B) is not always available 
within seven days, as stipulated by the Regulation. On the one hand, interviewees explained 
this is e.g.  due to the time required for postage. On the other hand, interviewees alluded to 
instances  where  the  internal  processing  of  requests  within  the  given  time-frame  was  not 
possible.  

107 Crosses in brackets indicate that the channel of communication is only partially accepted in the Member 
States. For instance, a given channel may only be used to request certain acts of taking of evidence or to 
communicate about incomplete or missing information. 

24 

 
 
 
 
 
 
 
 
 
                                                            
5.1.2.3 Decision about the validity of a request 

Following  the  acknowledgment  of  receipt,  the  requested  court  or  central  authority  in  the 
requested Member State has to decide upon the validity of the request.  

For  both  channels  (direct  and  indirect)  of  taking  of  evidence,  interviewees  reported  that 
neither the deadlines for the decision about the validity of requests nor for the execution of 
requests  are  usually  respected.  In  addition,  coordination  of  hearings  and  procedures  is 
considered time consuming.  

In case the request concerns taking of evidence through a competent court in another Member 
State  (Articles  10-16),  the  requested  court  has  to  carry  out  the  accepted  request  within  90 
days  or  refuse  it  within  60  days,  based  on  Article  14.  As  noted  above,  the  introduction  of 
standardised  forms  under  Regulation  (EC)  1206/2001  has  facilitated  a  common  and  more 
effective approach to deciding about the validity of a request. Still, interviewees reported that 
in some cases decisions are not taken and communicated in a timely manner.108 This prevents 
an effective taking of evidence within the timeframe specified in the Regulation. 

In  case  of  incomplete  requests,  the  requested  court  shall  inform  the  requesting  court  and 
request  the  missing  information  to  be  supplied  (following  the  rectification  procedure 
specified in Articles 8 and 9). This procedure offers an effective way of correcting errors and 
facilitating effective execution of requests in a timely manner (i.e. without the need for a new 
request). As concerns the frequency of such situations, interviewees reported that requests are 
often  incomplete  or  translations  incomprehensible.  A  judge  specialised  in  carrying  out 
requests under the Regulation in Germany stated that it is sometimes not entirely clear what 
the other court needs. In other cases, the purpose of the request itself is not clear or it is not 
clear what exactly a hearing should be about. Furthermore, numerous interviewees suggested 
that the use of online translation tools without a proper review process has led to confusing or 
contradictory statements in the request. Moreover, the interviewees indicated that a number 
of Member States do no provide a translation for the requests at all.  

The  use  of  electronic  means  of  communication  is  not  officially  accepted  in  a  majority  of 
Member States. In fact, email addresses are frequently not provided by the requesting court 
and may not be found by the requested court. However, several interviewees from Nordic and 
Baltic  countries  emphasised  the  potential  role  of  email  to  accelerate  the  process  of 
rectification.  Even  if  requests  via  email  are  not  permitted,  requesting  and  requested  courts 
currently use emails for informal inquiries and follow-up communication. When requests are 
incomplete,  email  is  widely  reported  to  offer  a  fast  and  straightforward  method  to  ask  for 

108 A number of interviewees from different Member States cited examples where no answer was received at all 

or at least not before the request had already been carried out.  

25 

 
 
 
                                                            
clarification  and  additional  information.109  Ultimately,  this  informal  use  of  email  has 
increased the effective application of the Regulation. 110 

According to the stakeholders consulted, decisions on the validity of requests for direct taking 
of  evidence  were  in  most  cases  accepted.  Here,  the  requested  court  has  to  inform  the 
requesting  court  within  30  days  about  the  acceptance  and  specify  the  means  by  which  the 
evidence  may  be  obtained.  Again,  interviewees  reported  that  decisions  concerning  the 
validity of requests are frequently not reached and communicated in a timely manner. 

Refusals based on incomplete information (Article 17(5)(b)) are made for the same reasons as 
described above. Again, incomplete or incomprehensible requests are cited as a problem and 
the rectification procedure is experienced as time-consuming and complicated. 

In  addition,  interviewees  stated  that  refusals  had  been  made  based  on  considerations  of  the 
scope  of  the  Regulation  (Article  17(5)(a))  or  incompatibility  of  national  procedural  law 
(Article  17  (5)(c)).  For  instance,  refusals  have  referred  to  attempts  to  hear  witnesses  via 
telephone or video-conferencing facilities if this is not permitted under the procedural of the 
requested Member State.  

5.1.2.4  

The taking of evidence 

Both  of  the  standardised  procedures  under  Regulation  (EC)  1206/2001  to  take  evidence  in 
another  Member  State  (i.e.  directly  taking  evidence  or  requesting  the  competent  court  in 
another Member State to take evidence) were welcomed by the interviewees. Almost half of 
the  respondents  to  public  consultation  (45%)  confirmed  that  evidence  was  obtained  from 
another Member State without major difficulties when using the Regulation (see Table 7). Of 
the remaining respondents, 17% disagreed and 38% did not provide an answer.  

109 This approach was for instance reported by stakeholders in Germany, Italy, or Estonia. 
110 For the opposite case, the central body in a Southern European Member State explained the frustration 

surrounding incomplete requests: If the requesting court does not provide an email or phone number, central 
authorities and competent courts are only able to send back incomplete requests. This is seen as ineffective 
and considered a waste of time and resources. If electronic communication is possible, the persons involved 
could solve the problem in a more effective and efficient manner. 

26 

 
 
 
 
                                                            
Table 7: Reported difficulty to obtain evidence from another Member State 

Statement:  The  evidence  was  obtained  from  the  other  Member  State  without  major 
difficulties 

Response 

Strongly agree 
Tend to agree 
Tend to disagree 
Strongly disagree 
Do not know/ No opinion 
Total 
Source: European Commission open public consultation  

Count  Percentage 

10 
18 
9 
2 
24 
63 

15.9% 
28.6% 
14.3% 
3.2% 
38.1% 
100.0% 

Interviewees  stated  that  they  were  generally  able  to  use  Regulation  (EC)  1206/2001  to 
effectively obtain evidence in different formats. However, at the same time, they mentioned 
areas for possible improvements. 

Following the acceptance of the request for taking of evidence through a competent court in 
another  Member  State  (Articles  10-16),  the  requested  court  executes  the  request  in 
accordance  with  the  law  of  the  requested  Member  State  (either  using  non-coercive  or 
coercive measures).  

Requests for the taking of evidence are not always executed expeditiously in practice. On the 
one hand, the possibility of direct communication between the requesting and requested court 
was  reported  to  have  made  procedures  more  effective.  On  the  other  hand,  interviewees 
provided examples of delays encountered when using the evidence to be taken by courts in 
another Member State under the Regulation. The timeframes specified in the Regulation are 
often  surpassed  in  the  process  of  obtaining  evidence  from  other  Member  States.  In  some 
cases, additional efforts are required to identify and locate witnesses or parties to be heard. 
For  these  cases,  interviewees  cited  examples  that  requested  courts  were  either  inactive  or 
unwilling  to  locate  the  person  in  question.  According  to  the  interviewees,  the  requesting 
courts  can  do  nothing  to  ensure  an  effective  and  expedite  execution  of  requests,  as  the 
Regulation specifies no consequences or further means to address this type of situations.  

The duration of the procedures depend on the form of evidence requested, according to the 
stakeholders consulted.111 For instance, obtaining social welfare reports in family law cases 
was reported to be cumbersome or even impossible in certain Member States.112 A Romanian 
court cited an example in which they had to reformulate a request for a social welfare report 

111 For instance, a German court stated that 90 days are usually enough to carry out a request to hear a witness, 
while obtaining expert opinions often takes longer. The interviewee explained that in some cases, the 
number of knowledgeable persons is small and they need time to gain an understanding of the case and 
documents or objects involved. 

112 See in more detail below chapter 5.4.3 on the relationship between Regulation (EC) 1206/2001 and the 

Brussels IIa Regulation. 

27 

 
 
 
 
                                                            
into a list of questions (which could then be asked during a hearing). A stakeholder provided 
a similar example, in which Irish courts were not able to provide a social welfare report in a 
custody  case.  A  substitute  for  the  report  was  only  obtained  after  several  years  upon  a 
mediation by the local EJN contact point. These examples illustrate that external factors may 
also determine whether requests for the taking of evidence may be executed in an expedite 
fashion.  

If a request to take evidence directly (Article 17) is accepted, the first step is to organise the 
procedure and coordinate appointments. Here, several factors  limit the effective application 
of the Regulation. On the one hand, the availability of video-conferencing facilities in courts 
is  not  always  transparent  and  scheduling  is  needed  in  advance.  For  instance,  most 
interviewees using videoconferencing equipment stated that a technical test has to be carried 
out  one  day  prior  to  the  actual  hearing.  As  a  result,  facilities  and  technicians  have  to  be 
available on several occasions.  

Interviewees also reported that some requesting courts schedule hearings in advance without 
communicating  appointments  to  the  court  in  another  Member  State  (where  direct  taking  of 
evidence  has  to  be  carried  out),  sometimes  leading  to  problems  at  the  time  of  the  hearings 
(e.g.  due  to  technical  interoperability  issues).  Similarly,  scheduled  appointments  are  not 
always observed, if there are delays during hearings in the requesting Member States. In these 
cases,  interviewees  reported  that  witnesses,  technicians  and  judicial  staff  had  to  wait  or 
hearings had to be rescheduled. Finally, coordinating procedures was reported to be difficult 
if there are language barriers or challenges to locate witnesses or relevant parties in another 
Member State.  

Once the procedures are agreed, the requesting court may execute the request in accordance 
with the law of the requesting Member State. The direct method introduced by the Regulation 
was  partially  successful  in  practice,  offering  an  additional  channel  for legal  practitioners to 
take evidence directly across borders. However, interviewees identify room for improvement 
to increase the attractiveness of the method and successful execution.  

Firstly,  interviewees  stated  that  the  non-coercive  measures  permitted  for  direct  taking  of 
evidence may in some cases reduce the attractiveness of direct taking of evidence. Secondly, 
the  requesting  courts  are  sometimes  not  allowed  to  obtain  certain  information  admissible 
under their procedural law in another Member State. Thirdly, the availability of interpreters 
and the quality of their interpretation is crucial to obtain the required evidence in an effective 
way. In some cases, requesting courts reported reluctance or doubt whether they were always 
able to ensure the quality of interpretation themselves. Finally, it is not always transparent for 
legal  practitioners  and  courts  which  costs  have  to  be  expected,  reimbursed  and  how 
reimbursements are carried out in practice.  

In general, interviewees stated that the uptake of modern technologies makes direct taking of 
evidence under the Regulation more effective. The uptake of modern technologies is not an 
obligation under the Regulation itself, but depends entirely on individual efforts in Member 

28 

 
 
 
States  to  introduce  modern  technologies  in  the  judiciary  and  the  overall  move  towards 
digitisation.  

Stakeholders  frequently  identified  room  for  improvement  concerning  the  use  of  modern 
technologies under the Regulation. Most examples of practical application were provided in 
relation  to  videoconferencing.  Interviewees  emphasised  that  this  instrument  would  be  the 
preferred method for hearing witnesses in other Member States in theory (when permitted).113 
However, interviewees repeatedly stressed that it had not always been technically feasible in 
previous  cases  (e.g.  when  the  use  of  existing  equipment  was  only  permitted  for  domestic 
purposes).  Likewise,  it  was  not  always  legally  feasible,  i.e.  permitted  under  national 
procedural laws.  For  instance,  Swedish  courts  frequently  use  telephone conferences  to  hear 
witnesses  or  parties  involved.  This  is  rarely  permitted  in  cross-border  contexts.  Overall, 
interviewees  stated  that  technical  difficulties  and  barriers  were  experienced  in  the  past. 
However, the lack of availability of facilities in the first place and lack of permissions to use 
modern  technologies  was  more  frequently  considered  a  problem  reducing  effectiveness  of 
requests.  

As  a  result,  the  evidence  is  mixed,  whether  the  direct  method  of  taking  evidence  is  more 
attractive compared to the method of taking evidence through a competent court in another 
Member State. The share of cases in which the former channel is used is much lower than the 
share  of  cases  where  requested  courts  in  other  Member  States  take  evidence  under  the 
Regulation.  Based  on  the  statements  by  interviewees  described  above,  it  may  be  more 
complicated  and  less  effective  to  use  the  direct  method  for  taking  of  evidence.  The  effort 
required  to  coordinate  a  hearing  and  communicate  directly  with  possible  language  barriers 
may  prevent  evidence  to  be  obtained  effectively  this  way.  Nevertheless,  interviewees 
emphasised  that  the  option  to  use  videoconferencing  as  part  of  the  direct  channel  of  taking 
evidence  remains  appealing  in  principle.  The  reason  for  this  was  that  it  can  be  more 
successful to engage directly with witnesses or experts, travel costs are reduced and barriers 
to participate are often perceived to be lower.  

Overall,  it  is  relevant  to  note  that,  based  on  their  personal  experience  in  applying  the 
Regulation,  interviewees  from  courts  seem  to  have  formed  strong  opinions  about  the 
possibility  to  take  evidence  directly  in  other  Member  States.  In  case  a  court  has  faced 
challenges in relation to obtaining evidence in another Member State on previous occasions, 
interviewees reported a reduced interest or willingness to (attempt to) take evidence directly 
in this country again. Therefore, negative experiences may shape the willingness to cooperate 
in the future, for incoming and outgoing requests.  

5.1.2.5 Confirmation 

113 According to interviewees, videoconferencing systems were often used by Swedish, Portuguese or Austrian 

courts, for instance in cases with Poland, the Baltic countries and Eastern European countries. 

29 

 
 
 
 
                                                            
Once  the  process  of  indirect  taking  of  evidence  via  a  requested  court  is  completed, 
information  on  the  outcome  of  the  request  is  shared  (using  Form  H)  and  (if  necessary), 
documents  establishing  the  execution  of  the  request  are  exchanged.  Few  problems  were 
reported by the interviewees for these steps.  

However,  as  described  above,  confirmations  on  the  execution  of  requests  are  often  not 
received  within  the  timeframe  of  90  days  specified  under  the  Regulation.  Likewise, 
requesting courts are not always able to obtain evidence in the intended way, e.g. if a certain 
format or method of obtaining information is not allowed under the procedural law of another 
Member States.  Alternative methods used  to  obtain information  may not  yield the intended 
outcome. 

As  concerns  the  effectiveness  of  taking  evidence  through  a  competent  court  in  another 
Member  State,  the  objective  to  use  modern  technologies  –  which  may  accelerate  judicial 
proceedings  –  is  not  always  reached.  This  concerns  both  the  communication  between  the 
requesting and requested courts, as well as the transmission of evidence in electronic form.  

As  indicated  above,  the  use  of  modern  technologies  to  communicate  or  exchange  evidence 
electronically is  still only permitted in  few Member States. Several interviewees  stated that 
“electronic evidence” is not defined under the procedural law of their Member State.114 The 
transmission  of  evidence  in  electronic  forms  is  not  always  permitted,  because  methods  to 
verify digital signatures are not yet known or used by most requesting or requested courts. A 
judicial officer in Germany also cited restrictions for accepting electronic evidence based on 
security  concerns.  Data  storage  mediums  from  external  sources  may  not  be  connected  to 
court IT infrastructures networks, as they may contain viruses or other harmful software.  

5.1.2.6  

Conclusion 

Overall,  Regulation  (EC)  1206/2001  has  made  a  contribution  to  achieving  the  operational 
objectives. The introduction of a framework for cooperation for taking evidence is welcomed 
by  practitioners.  The  introduction  of  standard  forms  and  communication  channels  has 
facilitated communication. Nevertheless, there is room for improvement based on a number 
of hurdles identified. 

First, as regards to the definition of the concepts of the Regulation, there are still diverging 
interpretations  as  to  what  is  considered  "taking  of  evidence"  within  the  meaning  of  the 
Regulation.  Such  interpretations  provide  a  justification  for  requested  courts  to  refuse  the 
execution  of  incoming  requests  (Article  14(2)(a)  of  the  Regulation)  and  thereby  lead  to  a 
'variable geometry' in terms of the scope of application of the Regulation.  

114 One notable exception is Estonia, where a digital and physical files share the same status and evidence may 
not be refused based on the fact that it is presented in electronic form, see: §57 Code of Civil Procedure, 
https://www.riigiteataja.ee/en/eli/513122013001/consolide  

30 

 
 
 
 
                                                            
The Regulation is applicable to judicial cooperation between “courts” of the Member States. 
However,  there  is  no  streamlined  interpretation  of  this  concept  among  the  Member  States: 
some  of  them  only  consider  traditional  tribunals  as  covered,  whereas  others  accept  a  more 
open  approach  and  accept  and  execute  requests  coming  from  judicial  authorities  other  than 
courts (notary publics, social welfare or guardianship authorities, enforcement authorities), if 
these are empowered by law to proceed in civil or judicial matters.  

Furthermore, recent case-law of the CJEU reflects a consistent approach in favour of the    
non-mandatory character of the Regulation. As it is reiterated in the relevant decisions, "the 
Regulation does not govern exhaustively the taking of cross-border evidence, but simply aims 
to  facilitate  it,  allowing  the  use  of  other  instruments  having  the  same  aim".  Consequently, 
Member  States’  courts  may  continue  to  use  national  procedures  which  for  the  purposes  of 
internal  taking  of  evidence  allow  them  access  to  evidence situated in  other  Member  States. 
For instance, the Court held that the application of the Regulation is not obligatory in the case 
of hearing of a party residing in another Member State as a witness (C-170/11, Lippens and 
Others) or if an expert investigation shall be carried out on the territory of another Member 
State  provided  that  this  investigation  does  not  affect  the  powers  of  that  Member  State  (C-
332/11, ProRail). At the same time the Court also held that the use of such national methods 
is  not  without  limits.  E.g.  in  the  ProRail  judgment,  the  Court  ruled  that  under  certain 
circumstances, where the investigation to be carried out by the designated expert might affect 
the  powers  of  the  Member  State  in  which  it  takes  place,  in  particular  where  it  is  an 
investigation  carried  out  in  places  connected  to  the  exercise  of  such  powers  or  in  places to 
which access or other action is prohibited or restricted to certain persons under the law of the 
Member State in which the investigation is carried out, the requesting court shall resort to the 
methods provided by the Regulation.115  

While  the  objectives  pursued  by  the  Court  in  eliminating  unnecessary  bureaucracy  may  be 
supported,  these  judgments  have  nevertheless  created  some  legal  uncertainty  and  may  in 
certain  cases  lead  to  undesirable  results.  For  instance,  cases  have  been  reported  by  citizens 
who  wished  or  were  requested  to  appear  as  a  witness  in  proceedings  pending  in  another 
Member  State  and  where  the  court  seised  required  their  physical  presence  before  the  court 
despite the explicit request of the citizens to be heard by distance means of communication 
(e.g. videoconferencing). 

Furthermore, some key emerging trends, such as digitalization, have been identified as posing 
challenges to the relevance of the Regulation, which hence could no longer be regarded fully 
future-proof. At the national level, some Member States already include electronic service in 
their legal systems, while others are investing efforts to do so.116 At EU level, the increased 
use  of  digital  solutions  (through  e.g.  eID  and  trust  services)  is  encouraged  and  is  being 
explored in  all  types  of sectors and business processes,  including  in  legal  proceedings. The 
framework  set  up  by  the  eIDAS  Regulation  allows  for  interoperability  of  more  digital 
solutions and thus opens the door for potential growth in use of eID and trust services, or that 
of the CEF e-Delivery building block (which is used by e-CODEX) to enhance the service of 
documents  in  cross-border  proceedings.  The  Regulation  does  not  accept  the  (direct) 
electronic  service  of  documents  from  one  Member  State  to  another  as  a  valid  means  of 

115 Case C-332/11 ProRail BV ECLI:EU:C:2013:87, paragraph 47. 
116 See state of play in relevant chapter of the 2016 Study Firenze 

31 

 
 
 
                                                            
serving  documents,  whereas  electronic  communication  between  the  transmitting  and 
receiving  agencies  designated  under  the  Regulation  is  a  rare  exception.  Moreover,  the 
Regulation  does  not  provide  that  digital  evidence  taken  in  accordance  with  the  law  of  a 
Member State is recognized in another Member State. The Regulation therefore falls behind 
these technological developments.  

Lastly,  according  to  the  most  of  the  stakeholders  consulted,  most  national  courts  in  cross-
border cases still avoid resorting to the Regulation and summon the witness or other person to 
be heard directly to the court. This predilection is caused not only by the sometimes difficult 
practical  coordination  between  the  courts  involved,  but  also  by  concerns  about  the 
preservation  of  the  principle  of  immediacy  in  the  assessment  of  the  evidence.  Furthermore, 
the language issue appears recurrently: The need to translate the form (and the questions) into 
a language accepted by the requested Member States raises problems with the accuracy of the 
translation  itself  and  with  the  costs.  Additionally,  technical  problems  to  carry  out 
videoconferences  seem  to  be  frequent,  since  not  all  involved  authorities  have  the  same  IT 
infrastructure.  

5.1.3   Achievement of the specific objectives of the Regulation 

5.1.3.1 To further improve the efficiency and speed of judicial proceedings 

The Regulation has contributed to more efficient cross-border proceedings, but there is room 
for improvement.  

Stakeholders  consulted  particularly  highlighted 
the  possibility  of  court-to-court 
communication  as  supporting  this  objective.  Compared  to  procedures  under  the  previous 
Hague  Conventions  or  agreements  with  third  countries,  the  possibility  to  request  a  court  in 
another Member State to take evidence and directly communicate with that court significantly 
helps speeding up such processes.117 In addition, the introduction of standard forms for such 
communication is considered by legal practitioners as significantly speeding up the process. 
The forms help ensuring that requests are complete and to the point and help to limit efforts 
for drafting and translating requests. Finally, the possibility for direct taking of evidence is in 

117 This was also the finding of the 2007 Commission’s report on the application of the Regulation, which 
indicates that the foreseen time of 90 days is faster than before the entry into force of the Regulation: 
Report from the Commission 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, 5.12.2007, COM(2007) 769 final, p. 3.  

32 

 
 
 
 
 
 
 
                                                            
principle appreciated by stakeholders as a possibility which may be more efficient than other 
methods in certain cases.118  

Nevertheless, as indicated above, the Regulation is applied only to a certain extent in cross-
border cases in which evidence needs to be taken abroad. One of the reasons highlighted by 
stakeholders  is  that,  in  many  cases,  taking  of  evidence  outside  the  framework  of  the 
Regulation is considered more efficient for taking evidence, e.g. directly summoning a person 
or consular channels.  

On  the  one  hand,  this  is  due  to  the  fact  that  there  are  certain  weaknesses  in  relation  to  the 
methods  covered  by  the  Regulation.  Taking  evidence  via  a  competent  court  in  another 
Member State (Articles 10 ff.) is still perceived to be a slow method, because the time limits 
are  often  not  kept.119  In  addition,  many  stakeholders  voiced  concerns  concerning  the 
practicalities  of  direct  taking  of  evidence  (Article  17)  because  no  coercive  means  may  be 
used or due to expected coordination efforts as well as potential undue costs in case witnesses 
fail to appear.120  

These  limitations  were  also  identified  in  a  2016  study  commissioned  by  the  European 
Commission.  The  study  found  that  a  majority  of  practitioners  still  considered  the  taking  of 
evidence abroad to be a “significant” or “very significant obstacle”.121 This implies that the 
current  framework  has  not  yet  fully  succeeded  in  removing  obstacles  relating  to  the  cross-
border taking of evidence.  

118 These points were raised in the interviews conducted as part of this study as well as in the following sources: 
Report from the Commission 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, 5.12.2007, COM(2007) 769 final, p. 5; Mainstrat (2007), Study on the application of Council 
Regulation (EC) No 1206/2001 on the taking of evidence in civil or commercial matter, pp. 7, 8 available: 
http://ec.europa.eu/civiljustice/publications/docs/final_report_ec_1206_2001_a_09032007.pdf 

119 This was raised by many of the interviewees and confirms the finding of the 2007 report on the application of 
the Regulation, which indicates that the foreseen time of 90 days is faster than before the entry into force of 
the Regulation: Report from the Commission 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, 5.12.2007, COM(2007) 769 final, p. 3. 

120 This is also reflected in the results of the open public consultation: the majority of respondents indicated that 
they prefer taking evidence through the competent court in another Member State rather than directly 
through Article 17.  

121 European Commission, 2016, JUST/2014/RCON/PR/CIVI/0082, p.118 Source: 
https://publications.europa.eu/en/publication-detail/-/publication/531ef49a-9768-11e7-b92d-
01aa75ed71a1/language-en 

33 

 
 
 
                                                            
Figure  3:  Extent  to  which  taking  of  evidence  in  cross-border  litigation  is  perceived  to 
pose obstacles  

Source: European Commission, MPI Luxembourg (2016) 

5.1.3.2 To  improve  access  to  justice  and  the  protection  of  the  procedural  rights  of  the 
parties  

The  Regulation  achieved  this  objective  to  a  large  extent.  Limitations  are  mainly  due  to  the 
fact that the Regulation is applied only to a limited extent. 

More  specifically,  the  Regulation  contributes  to  making  sure  that  all  relevant  evidence 
necessary for the claim and/or defence may be gathered in an efficient way, by introducing 
common channels that may be used for this purpose. It also facilitates the participation of the 
parties in the taking of evidence (Article 11). In addition, common approaches to the taking 
of evidence may contribute to a larger likelihood for mutual recognition of judgments taken 
within  the  EU.  On  this  basis,  the  right  of  access  to  justice  and  the  right  to  be  heard  are 
strengthened in the cases in which the Regulation is applied.  

However,  as  mentioned,  the  Regulation  is  only  applied  to  a  certain  extent  in  civil  and 
commercial cases in which evidence is collected in another Member State. The provisions in 
the Regulation can contribute to the protection of the rights of citizens and businesses only in 
those cases where the Regulation is actually applied. 

Furthermore,  the  achievement  of  this  objective  is  impaired  by  potential  costs  and  delays 
arising from difficulties relating to the design of the Regulation and its application. On this 
basis,  it  may  be  more  cumbersome  for  businesses  and  citizens  to  make  use  of  these  rights 
when  the  Regulation  is  applied  rather  than  methods  of  the  national  procedural  law.  For 
instance, the non-coercive nature of the direct method for taking evidence in another Member 

34 

 
 
 
 
 
 
State  may  be  delayed  for  technical  reasons,  or  differences  in  national  procedural  law  may 
allocate costs to obtain evidence in a different way than expected. 

Another  potential  difficulty  relates  to  the  possibility  of  a  person  who  is  heard  to  challenge 
measures or actions by the agencies/courts involved. The majority of the respondents of the 
public consultation indicated that this is not always easy.  

Table 8: Opinion of respondents to the public consultation concerning the right of the 
person heard in another Member State  

Statement: The person heard in another Member State could easily challenge a measure or 
an action of the agencies/courts involved during the taking of evidence. 

Response 
Strongly agree 
Tend to agree 
Tend to disagree 
Strongly disagree 
Do not know/ No opinion 
Total 
Source: Open public consultation by the European Commission 

Count 
1 
8 
12 
4 
37 
62 

Percentage 
1.6% 
12.9% 
19.4% 
6.5% 
59.7% 
100.0% 

5.1.3.3 To  reduce  the  burden  for  citizens  and  businesses  involved  in  cross-border 
proceedings 

The main burdens for businesses and citizens involved in legal proceedings are: 

  Time taken to conclude the case;  
  Court fees; 
  Costs for legal advice; 
  Travel costs and time taken to travel (e.g. to travel to a hearing); 
  Fees for expert opinions;  
  Costs  for  the  translation  of  requests  and/or  evidence  (e.g.  testimonies)  as  well  as 

interpretation;  

  Stress related to the taking of evidence (including e.g. based on delays).  

The Regulation contributes to reducing these types of burdens to some degree, although some 
limitations have been observed.  

As concerns the time taken to conclude a case, the Regulation has contributed to facilitating 
efficient taking of evidence in cross-border cases to some degree. For citizens and businesses 
involved in cross-border proceedings, this means that it is likely that the taking of evidence 
can be handled in an efficient manner. Thus, when a court makes use of the available means 
of the Regulation, taking of evidence is likely to be carried out in an efficient manner.  

35 

 
 
 
 
 
 
Nevertheless, some delays still exist, due to the design of the procedures (e.g. the need to ask 
for authorisation for the direct taking of evidence every time), as well as due to their practical 
application  (e.g.  mistakes  in  filling  in  the  forms,  not  adhering  to  deadlines).122  For  citizens 
and businesses, this means that the judicial proceedings they are involved in may take longer 
than  necessary,  potentially  also  leading  to  additional  costs  (e.g.  more  need  for  legal 
representation).  

In the case of direct taking of evidence, it is also possible that witnesses have to spend undue 
time  or  face  additional  burdens  due  to  inadequate  coordination/planning  or  technical 
difficulties.  

Finally, the achievement of this objective is hindered by the somewhat limited application of 
the Regulation. As mentioned, the Regulation is only applied to a certain extent in civil and 
commercial  cases  in  which  evidence  is  collected  in  another  Member  State.  Thus,  the 
Regulation only contributed to reducing the burden of citizens and businesses in these cases. 
In other cases, it is possible that citizens are e.g. summoned directly by courts for a hearing, 
which may  involve considerable travelling and thus the loss of time and money, depending 
on the situation.   

Overall,  while  there  is  still  room  for  improvement,  the  Regulation  has  improved  the 
efficiency and speed of judicial proceedings and thereby also contributes to ensuring the right 
to access to justice and the protection of the rights of the parties as well as reduces the burden 
for citizens and businesses involved in cross-border proceedings.  

5.1.3.4  

Conclusion 

Overall,  Regulation  (EC)  1206/2001  has  contributed  to  achieving  the  specific  objectives. 
Judicial  staff  in  different  Member  States  stated  that  Regulation  (EC)  1206/2001  has 
contributed to facilitating court-to-court communication and enabled the use of direct taking 
of  evidence  across  borders.  In  this  way,  it  has  contributed  to  the  efficiency  and  speed  of 
judicial  proceedings.  Nevertheless,  there  is  room  for  improvement  based  on  a  number  of 
hurdles  identified,  which  limit  the  achievement  of  the  specific  objectives.  Methods  not 
covered  by  the  Regulation  may  be  faster  and  more  efficient  in  some  cases.  Delays  in 
communication and authorisation of requests may cause burdens and undue costs on the side 
of witnesses, citizens and businesses (in particular when direct taking of evidence is used). 

5.2  Efficiency 

122 This was raised by the stakeholders consulted as part of this study and in the Report from the Commission 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, 5.12.2007, 
COM(2007) 769 final.  

36 

 
 
 
 
 
                                                            
The assessment of efficiency considers the relationship between the resources exhausted by 
the intervention and the achievements of the intervention. 

This chapter contains the assessment of the efficiency of the Regulation, considered from a 
wider and a more narrow perspective. 

The effects of the Regulation were achieved at a reasonable cost. 

However, since the application of the Regulation is not mandatory, and channels for taking 
evidence  under  national  law  can  be  applied  as  an  alternative,  its  objective  to  facilitate  the 
taking  of  evidence  across  borders  can  –  theoretically  –  also  be  achieved  through  the 
application  of  procedures  outside  the  scope  of  the  Regulation,  e.g.  directly  summoning  a 
person or consular channels.  

Therefore,  two  streams  of  argumentation  are  crucial  for  the  assessment  of  the  efficiency  of 
the Regulation, depending on the scope and point of view of the assessment: 

  Wider  perspective:  The  Regulation  is  applied  in  only  a  limited  number  and  share  of 
legal  proceedings  in  cross-border  civil  and  commercial  matters.  Therefore,  its 
contribution  to  an  efficient  system  of  taking  of  evidence  across  borders  is  limited. 
However, directly summoning a person or the use of consular channels to take evidence 
contribute to maintaining the overall efficiency of the system although those channels 
fall outside the scope of the Regulation; and 

  More narrow perspective: In legal proceedings in which the Regulation was applied, its 
channels and procedures seem to have worked reasonably efficiently – although there is 
room for improvement. 

The following sections provide an assessment of the efficiency of the Regulation from both 
the wider and more narrow perspectives. 

5.2.1  Efficiency from the wider perspective 

It  is  estimated  that  the  Regulation  was  applied  in  around  150,000  legal  proceedings  on 
average per year between 2001 and 2017. However, estimates also show that Regulation (EC) 
1206/2001 is only applied in the upper range of a proportion of 5 to 50% of all cross-border 
legal proceedings in civil and commercial matters in which evidence is taken123. Whilst this 
figure reflects that in a very large number of cases no evidence needs to be taken at all or it 
can  be  taken  in  the  Member  States  where  the  case  is  pending  it  also  reflects  that  in  some 
cases the cross-border taking of evidence takes place outside the framework of a Regulation 
and  courts  simply  apply  their  national  laws,  for  example  by  directly  summoning  a  person 
from  abroad  to  testify  in  court  or  by  the  use  of  consular  channels  to  hear  witnesses.  This 

123 See point 3 above. 

37 

 
 
 
 
 
 
                                                            
situation does not, however, per se point to an inefficiency of the Regulation. To some extent, 
it  could  rather  be  argued  that  it  is  a  strength  of  the  Regulation  contributing  to  the  overall 
efficiency of cross-border taking of evidence that the Regulation is not exclusive but allows 
courts  to  use  other  methods  where  they  are  considered  more  efficient  depending  on  the 
specific circumstances of each legal proceeding. For instance, although directly summoning a 
person to court from abroad under national law (as opposed to a request to a foreign court to 
hear  that  person  under  the  Regulation  or  as  opposed  to  a  request  for  the  authorisation  of  a 
hearing  by  videoconference  under  the  Regulation)    may  very  well  cause  higher  costs  or 
burden for the person summoned, it may be that legal proceedings in which evidence is taken 
directly in another Member State or a court is requested to do so under the Regulation take 
longer, involve more organisational effort, consume a higher travel budget, or ultimately fail 
to take the necessary evidence since the request was not entirely clear, as stakeholders report. 

From  this  point  of  view,  the  non-mandatory  nature  of  the  Regulation  and  the  flexibility  it 
implies  may  be  seen  to  some  extent  rather  as  a  contributing  factor  to  the  system’s  overall 
efficiency than a detriment.  

This is also supported by the Commission’s Evaluation study of national procedural laws and 
practices in terms of their impact on the free circulation of judgments and on the equivalence 
and effectiveness of the procedural protection of consumers under EU consumer law.124 As 
part  of  this  study,  approx.  60%  (31  out  of  52)  of  the  respondents  indicated  that  the  non-
mandatory  nature  of  the  Regulation  is  appreciated  as  “it  allows  for  the  use  of  the  most 
efficient tool for the case at hand.” 

Thus, from the wider perspective, the non-mandatory nature of the Regulation, giving courts 
the  freedom  of  choice  to  directly  summon  a  person  or  to  use  of  consular  channels,  is  in 
principle a strength. Not forcing courts to apply the direct taking of evidence or requesting a 
court  in  another  Member  State  to  take  the  evidence  through  the  channels  foreseen  by  the 
Regulation can leave courts the necessary leeway to identify the most suitable procedures and 
channels for their specific legal proceeding at the operational level.  

On  the  other  hand,  the  parallel  application  of  the  Regulation  and  other  channels  under 
national law can cause a certain extent of confusion and legal uncertainty. In order to find the 
suitable channel for taking evidence across borders, courts always need to take two different 
legal regimes (European and national) into account. Since many courts and practitioners are 
still relatively unfamiliar with the cross-border taking of evidence which is needed only in a 
very  limited  number  of  cases,  finding  out  about  the  legal  situation,  the  availability  of  the 
Regulation or channels under national law, and taking the decision on the most appropriate 
way to go imply some burdens and delays.    

124 European Commission, 2016, JUST/2014/RCON/PR/CIVI/0082, p.118 Source: 
https://publications.europa.eu/en/publication-detail/-/publication/531ef49a-9768-11e7-b92d-
01aa75ed71a1/language-en 

38 

 
 
 
                                                            
Therefore, costs associated with the application of the Regulation are also expected to vary 
between Member States and even between courts. The differences are caused by the specific 
types  of  cases  they  are  dealing  with  at  their  operational  level  and  the  extent  to  which  it  is 
appropriate  for  (the  outcome  of)  the  proceedings  to  use  the  Regulation  or  other  domestic 
means to take evidence across borders.  

Although, as identified as part of the online survey, 8 out of 14 respondents agreed that direct 
taking  of  evidence  is  not  very  attractive,  the  majority  of  respondents  to  the  open  public 
consultation  (for  the  specific  question)  did  not  agree  that  the  taking  of  evidence  across 
borders125 contributed to generate disproportionate costs or were too costly/delays or were too 
lengthy and bureaucratic. 

Figure 5: Extent to which taking of evidence across borders generates costs and delays 

ToE in another Member State… 

… generated disproportionate costs. (N=36) 

19% 

81% 

... caused a disproportionate delay. (N=55)

36% 

64% 

0%

20%

40%

60%

80%

100%

Agree

Do not agree

ToE in another Member State under the ways provided for in the Regulation … 

... is too costly. (N=50)

22% 

78% 

... is too lengthy and bureaucratic. (N=58)

43% 

57% 

0%

20%

40%

60%

80%

100%

Agree

Do not agree

Source: European Commission’s open public consultation. The item ‘Agree’ encompasses the 
answer  alternatives  ‘strongly  agree’  and  ‘tend  to  agree’.  The  item  ‘Do  not  agree’ 
encompasses the answer alternatives ‘tend to disagree’ and ‘strongly disagree’. 

The figure above shows that: 

  In relation to the general taking of evidence across borders: 

125 In general and specifically by means of the channels provided for in the Regulation. 

39 

 
 
 
 
 
 
 
                                                            
o  Around eight out of ten respondents (81%, 29 out of 36 respondents) indicated that 
they did not consider that the taking of evidence in another Member State caused 
disproportionate costs for them; 

o  Almost  two  thirds  of  the  respondents  (64%,  35  out  of  55  respondents)  indicated 
that  they  did  not  consider  that  the  taking  of  evidence  in  another  Member  State 
caused a disproportionate delay in the judicial proceedings. 

o  Therefore,  length  and  bureaucracy  are  perceived  as  a  problem  by  twice  as  many 

stakeholders than costs. 

  In  relation  to  the  taking  of  evidence  by  means  of  the  channels  foreseen  in  the 

Regulation: 

o  More  than  three  quarters  of  the  respondents  (78%,  39  out  of  50  respondents) 
indicated that they did not consider that the taking of evidence in another Member 
State under the methods provided for in the Regulation is too costly; 

o  The  majority  of  respondents  (57%,  33  out  of  58  respondents)  indicated  that  they 
did not consider that the methods to take evidence across border provided for in the 
Regulations is too cumbersome, lengthy, and bureaucratic. 

5.2.2  Efficiency from the more narrow perspective 

Although  the  taking  of  evidence  under  the  Regulation  may  often  take  up  to  six  months 
(compared  to  the  90  days  foreseen  by  the  Regulation),  and  thus  exceed  the  stipulated 
deadlines,  stakeholders’  feedback  received  as  part  of  this  study  shows  that  the  procedures 
work reasonably efficient with room for improvement in specific areas. 

This  is  supported  by  the  data  obtained  by  the  EJN  in  its  2014  survey  on  the  Regulation  in 
which all Member States that responded to the survey indicated that the Regulation improved 
cross-border  judicial  cooperation  –  including  in  relation  to  the  time  taken  for  and  the 
efficiency of executing requests. 

All  17  respondents  that  provided  an  answer  to  the  respective  question  in  the  online  survey 
carried  out  during  the  study  indicated  that  the  Regulation  had  accelerated  the  taking  of 
evidence  across  borders.  Moreover,  13  of  14  respondents  indicated  that  the  Regulation  had 
lowered  the  costs  involved  in  obtaining  evidence  across  borders,  whereas  14  of  18 
respondents  indicated  that  the  Regulation  ensures  that  evidence  is  obtained  in  other  EU 
Member States by the swiftest possible means. 

As part of the interviews, the following points were repeatedly mentioned by stakeholders as 
particular strengths of the Regulation: 

  The  possibility  of  court-to-court  communication  is  considered  to  be  an  improvement 

compared to the Hague Convention or in relation to third countries; 

40 

 
 
 
 
 
 
  The introduction of standard forms enables the stakeholders to lodge requests that are 
complete and to the point and help to limit efforts for drafting and translating requests; 
  The  possibility  to  take  evidence  directly  in  other  Member  States  guarantees  courts’ 
freedom  of  choice  in  relation  to  the  most  appropriate  means  to  take  evidence  across 
borders.  

In particular with regard to the first aspect, one German interviewee indicated that, under the 
Hague  Convention,  requests  for  clarifications  to  a  country  outside  the  EU  are  usually  not 
answered.  Therefore,  the  possibility  under  the  Regulation  to  communicate  directly  between 
courts  (i.e.  no  prior  contacting  of  ministries/consulates  is  necessary)  is  a  real  added  value 
compared to the situation before the Regulation was in place.  

Concerning the second aspect, the regulation has already simplified the administrative burden 
for  judicial  authorities  and  parties  to  the  proceedings.  However,  according  to  interviewees, 
there is still room for improvement with regard to stakeholders’ awareness of and knowledge 
concerning  how  to  complete  the  forms,  in  what  language,  and  the  level  of  detail  to  be 
specified. 

As part  of the Commission’s open public consultation, stakeholders also indicated that it is 
easy  to  identify  the  agency  (court)  or  the  competent  authority  in  another  Member  State, 
which  is  designated  to  provide  judicial  assistance  in  taking  evidence.  In  addition,  central 
authorities of the Member States designated under the Regulation generally provide prompt 
and efficient help in settling problems arising in the course of judicial cooperation. Finally, 
based on the feedback received, it seems that persons heard in another Member State do not 
encounter inappropriate difficulties (such as disproportionate costs, or missed a deadlines) as 
a consequence of the fact that the language of the proceedings was a foreign language. 

This is also visualised below. 

41 

 
 
 
Figure  6:  Strengths  of  the  Regulation  according  to  respondents  to  the  open  public 
consultation 

It is easy to identify the agency (court) or the competent
authority in another Member State which is designated
to provide judicial assistance in taking evidence. (N=71)

The person heard in another Member State did not
encounter difficulties as a consequence of the fact that
the language of the proceedings was a foreign language
(e.g. disproportionate costs, or missed a deadline).
(N=30)

Central Authorities designated under the Regulation
provide prompt and efficient help in settling problems
which arise in course of the judicial cooperation. (N=66)

86% 

14% 

73% 

27% 

62% 

38% 

0%

20%

40%

60%

80%

100%

Agree

Do not agree

Source: European Commission’s open public consultation. The item ‘Agree’ encompasses the 
answer  alternatives  ‘strongly  agree’  and  ‘tend  to  agree’.  The  item  ‘Do  not  agree’ 
encompasses the answer alternatives ‘tend to disagree’ and ‘strongly disagree’. 

In  contrast,  however,  stakeholders  also  indicated  that  there  is  room  for  improvement  with 
regard to the following issues: 

  Taking  evidence  via  a  competent  court  in  another  Member  State  is  perceived  to  be  a 

slow method, i.a. because the time limits are often not kept; 

  Videoconferencing systems are not always available in all courts, which can delay the 

process to take evidence. 

These aspects are further discussed below. 

5.2.3  Speed of procedure 

The time limits provided for under the Regulation (i.e. 30 days for a competent authority to 
indicate whether the request can be granted and 90 days to obtain the requested evidence) are 
often  not  respected  in  practice  according  to  stakeholders  from  multiple  Member  States 
interviewed as part of the study. 

This finding is not new. The European Commission’s 2007 report on the  application of the 
Regulation  already  indicated  that  “most  requests  for  the  taking  of  evidence  are  executed 

42 

 
 
 
 
 
 
 
 
within  90  days  […].  However,  there  is  also  a  significant  number  of  cases  in  which  the  90 
days 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.  

As part of the online survey, 9 of 15 respondents indicated that it happens more often than not 
that  their  requests  are  not  completed  within  90  days.  2  of  7  respondents  indicated  that  the 
average duration for a civil or commercial case involving the taking of evidence in other EU 
Member States is 6-12 months, whereas 4 respondents indicated that the duration exceeds 12 
months. 

According to the stakeholders interviewed for the study, this not always due to stakeholders’ 
limited awareness of the time limits, but also the practical difficulties to: 

  Work with the limits being specified as days and not as dates (for instance, courts may 
need the evidence for a hearing already before the end of the 90 day period or only after 
it); and 

  Identify, locate, and contact the witnesses, as well as to organise and actually hold the 
hearing. Moreover, there are types of evidence for which it naturally just takes time to 
obtain it due to their complex nature (e.g. DNA tests). 

As part of the study, interviewees from several Member States indicated that taking evidence 
across borders often takes three to four months. A Romanian interviewee portrayed a cross-
border  commercial  case  in  which  there  were  three  witnesses:  Two  from  Germany  and  one 
from  Italy.  The  hearing  was  conducted  by  courts  in  Germany  and  Italy  with  statements 
having  to  be  translated  after  the  hearing.  The  overall  process  to  collect  the  witnesses’ 
statements took around six months. 

There  are  differences  between  the  Member  States  with  regard  to  the  efficiency  of  this 
process.  Whereas in  some  Member  States  witnesses  can  be  questioned (with  prior consent) 
via tools such as Skype or even email, other Member States question the person physically in 
court. This physical questioning has advantages and disadvantages: 

  On the one hand, it guarantees that the witness is (at least physically) free to give the 
testimony  while  the  judge  or  judicial  officers  can  connect  to  the  person  emotionally, 
observe  gestures  and  other  non-verbal  communication  in  order  to  steer  the  hearing 
within an appropriate direction. 

  On the other hand, the physical hearing is often challenging to organise as schedules of 
different  stakeholders  need  to  be  aligned,  court  rooms  need  to  be  available,  and  the 
witness (or his representatives) need to appear in court. This may cause delays within 
the process, as well as costs for the parties involved. 

It  is,  however,  important  to  keep  in  mind  that  neither  of  the  above  are  mutually  exclusive 
alternatives.  In  fact,  judges  and  judicial  officers  need  to  use  the  means  appropriate  for  a 
specific  legal  proceeding  and  find  the  appropriate  balance  between  the  two  alternatives  – 

43 

 
 
 
 
 
especially since evidence may be harder to obtain in some cases than in others (e.g. in cases 
involving children or high profile commercial cases). 

Differences  regarding  the  efficiency  of  the  processes  also  stem  from  the  extent  to  which 
Member  States  rely  on  paper-based  communication.  Whereas  an  interviewee  from  France 
indicated  that  up  to  80%  of  all  communication  between  courts,  central  bodies,  and 
stakeholders in legal proceedings is paper-based, other Member States seem to be much less 
reliant on such communication. In Estonia, for instance, courts and the central body usually 
exchange  (internal)  e-signed  documents  via  their  eFile  system.  Such  a  system  is,  however, 
not  available  in  other  Member  States  and  can  therefore  not  be  applied  for  cross-border 
proceedings.  As  a  workaround,  a  German  official  explained  official  requests  and 
confirmations are sent by post while in very urgent cases, they already inform the requesting 
court via email or fax that a confirmation will be sent, so that they can go ahead with taking 
the evidence. 

5.2.4  Videoconferencing 

The  use  of  videoconferencing  can  simplify  the  interactions  in  cross-border  judicial 
cooperation. In fact, the use of videoconferencing has increased over the last couple of years 
according  to  interviewed  stakeholders,  in  particular  in  Member  States  such  as  Portugal  or 
Sweden. This is driven by a general increase in awareness of, knowledge about, and comfort 
in  using  these  types  of  communication  systems,  as  well  as  the  benefits  for  stakeholders 
associated with it. 

Videoconferencing facilities can, for instance, be used to find the right balance between the 
challenges  to  organise  a  physical  hearing  and  being  able  to  safeguard  the  freedom  of  the 
witness’s testimony (e.g. if an official in-court videoconferencing system is used).  

This also relates to the question concerning the extent to which the cooperation mechanisms 
in  the  Regulations  are  designed  in  an  efficient  way  or  to  what  extent  other  methods  could 
deliver better results at lower cost. 

Although  there  is  a  (non-binding)  EJN  guide  on  videoconferencing,  there  are  differences 
between the Member States with regard to the availability, potential, and actual use of such 
systems in courts: 

  All  Estonian  courts  are  equipped  with  videoconferencing  facilities  and  they  are  used 
frequently.  However, 
the  organisation  of  a 
videoconference is often more complicated than filling in the forms provided for under 
the Regulation and to request another court to take the evidence; 

interviewees  also 

indicated 

that 

  In Sweden, videoconferencing as a communication channel for the taking of evidence 
seems  to  be  used  comparatively  often  in  cross-border  cases,  e.g.  in  relation  to  cases 
concerning  Germany,  France,  Spain,  and  the  United  Kingdom.  One  interviewee 

44 

 
 
 
 
 
indicated  that  the  availability  of  interpreters  is  a  key  enabler  for  the  use  of 
videoconferencing; 

  In Belgium, only some courts possess videoconferencing equipment. Furthermore, the 
system only enables domestic calls. Thus, under this Regulation, the central body has to 
use the equipment of the Prosecutor-General; 

  An  interviewee  from  Hungary  indicated  that  it  would  be  too  expensive  to  equip  all 
courts with videoconferencing facilities. Therefore, such systems are only available in 
selected courts. 

Moreover, there are differences with regard to the type of videoconferencing system Member 
States  have  in  place.  The  use  of  Skype  by  some  Member  States  is,  for  instance,  not 
necessarily  compatible  from  a  legal  perspective  and  technically  interoperable  with  the 
systems used by other Member States. 

Assuming  that  videoconferencing  has  been  used  in  around  10%  to  25%  of  all  legal 
proceedings  in  which  direct  taking  of  evidence  was  applied,  it  could  be  estimated  that,  on 
average,  up  to  3,600  hearings  via  videoconference  were  held  in  2017.  However, 
videoconferencing is expected to have been far less frequently in the early 2000s than today. 

An  interviewee  from  Belgium  indicated  that  the  acquisition  and  set  up  of,  as  well  as  the 
training in relation to videoconferencing equipment costs around 90,000 Euro per system. In 
a similar vein, an Italian interviewee estimated that the use of videoconference is roughly 500 
Euro  per  connection.  A  Swedish  interviewee  mentioned  that  an  important  part  of  the  costs 
related  to  videoconferencing  relates  to  transcribing  the  recording.  In  Sweden,  such  costs 
could amount to around 270 Euro per hour of recording. 126 

Thus, the cost for one hour videoconferencing is estimated at around 770 Euro. 

Based  on  the  estimates  and  the  assumptions  provided  above,  it  could  be  expected  that  in 
2017, courts spent approx. 2.8 million Euro for videoconferencing, split across the different 
types of cases falling under the Regulation.127  

Table  9:  Costs  incurred  for  videoconferencing  (per  type  of  proceeding,  at  EU  level, 
2017) 

Type of legal proceeding 

Costs in Euro 

Contractual obligations 

1,279,000 € 

Compensation for damages 

521,000 €  

126 The costs for videoconferencing facilities and per connection are very likely to be (significantly) lower in 

other Member States. 

127 The estimate is derived from the following calculation: Individual estimates per type of legal proceeding 

multiplied with 500 Euro + 270 Euro. 

45 

 
 
 
 
 
 
                                                            
Type of legal proceeding 

Costs in Euro 

Successions & Wills 

Property transactions 

Administrative cases 

Divorces 

Insolvencies 

Parental responsibility 

Legal separations 

Total 

356,000 €  

316,000 €  

112,000 €  

82,000 €  

49,000 €  

44,000 €  

5,000 €  

2,764,000 

Source:  Estimates  by  Deloitte  based  on  Eurostat,  CEPEJ,  European  Commission,  and 
information gathered as part of the interviews 

The costs incurred for videoconferencing are expected to vary over time. They are not only 
subject to variances in the number of cases in which videoconferencing was used, but also to 
pricing changes.  

With regard to the costs of videoconferencing, it has also been reported that it is a practical 
problem to decide on who has to cover the cost for using videoconferencing facilities, paying 
interpreters and the drafting of protocols. 

While  videoconferencing  may,  in  theory,  contribute  to  reducing  delays  in  legal  procedures, 
some interviewees stated that videoconferencing facilities are largely pre-booked in advance 
so that there is no capacity to take evidence on comparatively short notice. On the contrary, 
having to wait for a videoconferencing system to be available may actually increase delays 
compared to other procedures provided for under the Regulation or outside of its scope (e.g. 
to  summon  the  person  to  court  or  to  use  consular  channels).  Several  interviewees,  for 
instance,  stated  that  the  waiting  time  for  a  hearing  via  videoconference  can  be  5-6  weeks, 
depending on the availability of a videoconferencing facility on the spot and the case load of 
the court. 

As  part  of  the  online  survey,  however,  9  out  of  15  respondents  indicated  that  taking  of 
evidence via videoconferencing can easily be arranged under the Regulation. 

5.2.5  Other challenges 

It  has  been  reported  that  some  courts  abstain  from  the  use  of  electronic  evidence  due  to 
technical reasons, such as the risk of virus-infected hardware that may be sent by other courts 
accidentally.  This  was,  for  example,  mentioned  by  an  interviewee  from  Germany  who 
indicated that although electronic evidence may be available, they typically ask for print-outs 
since  they  are  not  allowed  to  use  non-certified  data  carriers  in  order  not  to  jeopardise  the 

46 

 
 
 
 
 
function of their systems. If applicable to a larger number of courts or even Member States, 
this would be expected to contribute to further delays and costs in the legal proceedings. 

Stakeholders’ feedback was mixed with regard to some areas in relation to the efficiency of 
taking of evidence across borders. As part of the online survey carried out within this study, 
for  instance,  the  limited  number  of  respondents  that  provided  an  answer  to  the  relevant 
question  (18  in  total)  were  almost  equally  split  in  relation  to  whether  or  not  paper-based 
communication  and  exchange  of  documents  among  the  competent  agencies  and  authorities 
under  the  Regulation  hampers  the  speed  of  judicial  proceedings  (compared  to  the  use  of 
modern communication technologies). 

A majority of the online survey respondents indicated that the (lack of) equipment of courts 
with  appropriate technology and the knowledge about ICT solutions is an important barrier 
for  the  more  common  use  of  ICT  for  the  taking  of  evidence.  It  was  also  emphasised  that 
issues  with the interoperability of ICT solutions  between courts  in  different Member States 
are important, whereas legal barriers to sharing evidence through digital means were seen as 
less important for an increased uptake of ICT. 

5.2.6  Conclusion 

Based on the argumentation, data, and assumptions outlined above, the Regulation in and of 
itself was not  able to  fully exploit its potential to contribute to the overall efficiency of the 
processes  to  take  evidence  across  borders.  However,  within  the  framework  of  its  non-
mandatory  nature  thus  admitting  the  use  of  means  to  take  evidence  across  borders  under 
national  law  where  considered  preferable  the  Regulation  guaranteed  a  reasonably  efficient 
overall system to take evidence across borders. On the other hand, the parallel applicability of 
the Regulation and other channels under national law causes some legal uncertainty because 
courts  must  always  take  two  different  legal  regimes  (European  and  national)  into  account 
when deciding on the most appropriate channel for taking evidence abroad. 

From  a  more  narrow  perspective,  the  Regulation  has  increased  the  efficiency  of  the  legal 
proceedings in which it was applied – both compared to the Hague Convention and over time 
between  2001and  2017.  There  is,  however,  room  for  improvement  with  regard  to  some 
processes’ efficiency that the Regulation did not sufficiently address (yet).  This concerns in 
particular  the  speed  of  procedures  (e.g.  using  videoconferencing)  in  order  to  avoid  undue 
delays for businesses and citizens.  

5.3  Relevance 

As  part  of  the  analysis  of  the  relevance  of  the  Regulation,  its  initial  objectives  and  their 
correspondence  to  the  needs  in  the  EU  as  well  as  the  extent  to  which  the  Regulation  is 
adapted to technological progress were assessed.  

47 

 
 
 
 
 
The  original  overall  rationale  of  Regulation  (EC)  1206/2001,  i.e.  to  facilitate  the  taking  of 
evidence across borders with a view to ensure speedy handling of international cases, remains 
relevant. However, the relevance of the Regulation in practice has proven to be limited due to 
weaknesses and gaps of the procedures that it establishes for the taking of evidence.  

Overall,  the  number  of  cross-border  cases  concerning  civil  and  commercial  matters  has 
increased  in  recent  years.  In  the  context  of  the  objectives  of  the  EU  to  ensure  the  smooth 
functioning of an internal market and an area of freedom, security and justice, it is important 
that such cases can be resolved as quickly as possible and without undue costs for businesses 
and citizens.  

Against  this  background,  Regulation  (EC)  1206/2001  was  welcomed  by  the  stakeholders 
consulted.  Indeed,  several  interviewees  confirmed  its  importance  and  indicated  that 
Regulation  (EC)  1206/2001  has  contributed  to  both  simplifying  and  speeding  up  evidence-
taking  in  cross-border  situations.128  The  procedures  introduced  by  Regulation  (EC) 
1206/2001  were  highlighted  as  useful  by  numerous  interviewees,  including  from  central 
bodies and legal professionals. Its most relevant features, including compared to the previous 
Hague Conventions, as identified by these stakeholders include:  

  Introduction of direct court-to-court communication; 
  The use of standard forms; 
  The possibility of direct taking of evidence.129  

The relevance of the Regulation and in particular the direct taking of evidence increased due 
to  the  spread  of  modern  communication  technologies.  Indeed,  in  case  of  hearings,  direct 
taking of evidence is mostly conducted using videoconferencing. Several legal professionals 
indicated that it would not be as relevant if direct taking of evidence involved traveling of the 
judge to hear a party in person.  

Nevertheless,  as  et  out  in  more  detail  above  evidence  suggests  that  the  Regulation  is  used 
only  to  a  limited  extent  compared  to  the  overall  number  of  cross-border  cases.  As  the 
Regulation is not mandatory, courts apply domestic procedural law instead. 

This was already concluded in the evaluation of the Regulation that was carried out in 2007. 
At that time, its limited use was explained by a lack of familiarity with the Regulation and 
difficulty of changing habits – both possibly based on the novelty of the Regulation.130  

128 This was also the finding of: Mainstrat (2007), Study on the application of Council Regulation (EC) No 

1206/2001 on the taking of evidence in civil or commercial matter, available: 
http://ec.europa.eu/civiljustice/publications/docs/final_report_ec_1206_2001_a_09032007.pdf  

129 These points were raised in the interviews conducted as part of this study as well as in the following sources: 
Report from the Commission 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, 5.12.2007, COM(2007) 769 final, p. 5; Mainstrat (2007), Study on the application of Council 
Regulation (EC) No 1206/2001 on the taking of evidence in civil or commercial matter, pp. 7, 8 available: 
http://ec.europa.eu/civiljustice/publications/docs/final_report_ec_1206_2001_a_09032007.pdf 

48 

 
 
 
                                                            
When  asked  about  the  reasons  for  not  applying  the  Regulation  in  cross-border  cases  that 
involve the taking of evidence and instead use other instruments of domestic procedural law, 
interviewees mentioned: 

  The lack of knowledge about the Regulation; and 

  Some means/channels that are currently not covered by the Regulation are considered 
more  efficient  for  taking  evidence,  e.g.  directly  summoning  a  person  or  consular 
channels.  

The  scope  of  the  Regulation,  including  the  definition  of  the  term  “evidence”  was  raised  as 
one  of  the  main  issues  in  the  Commission’s  report  on  the  application  of  the  Regulation.131 
This concerns in particular DNA and blood samples, e.g. in the context of paternity tests. 

Considering  the  extent  to  which  the  Regulation  is  adapted  to  technological  progress,  the 
conclusion  is  neutral.  On  the  one  hand,  the  Regulation  stipulates  that  requests  and 
communications  pursuant  to  the  Regulation  shall  be  transmitted  by  the  swiftest  possible 
means, which the requested Member State has indicated it can accept. Thus, it is flexible in 
relation to technical progress, as Member States can choose, which communication means are 
most  suitable.  At  the  same  time,  the  use  of  electronic  means  of  communication  and 
videoconferencing is still very limited. Thus, the rules in the Regulation did not yet manage 
to promote the use of electronic means of communication in cross-border proceedings in line 
with  the  technical  progress.  In  fact,  stakeholders  from  some  Member  States  regretted  that 
electronic means may in fact be used less compared to national cases.  

5.4  Coherence 

The overall coherence of the Regulation was assessed both internally, and externally. For the 
internal  coherence,  the  consistency  of  the  different  provisions  within  the  Regulation  was 
analysed.  As  far  as  the  external  coherence  is  concerned,  it  was  assessed  how  well  the 
Regulation operates with other legal instruments. 

Similar  to  the  findings  of  previous  reports  and  studies,132  only  few  issues  relating  to  the 
coherence of the Regulation with other legal instruments and internally were identified in the 
study. In fact, most interviewees did not mention any issues in this respect and the analysis of 
the Regulation in the study and its relations with other instruments has not brought to light 

130 Mainstrat (2007), Study on the application of Council Regulation (EC) No 1206/2001 on the taking of 

evidence in civil or commercial matter, p. 6 available: 
http://ec.europa.eu/civiljustice/publications/docs/final_report_ec_1206_2001_a_09032007.pdf 

131 Report from the Commission 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, 5.12.2007, COM(2007) 769 final, p. 2.  

132 Report from the Commission 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, 5.12.2007, COM(2007) 769 final, pp. 6, 18. 

49 

 
 
 
 
 
                                                                                                                                                                                         
any  serious  issues  in  this  respects.  However,  some  overlaps  may  exist  in  relation  to  the 
Brussels  IIa  Regulation  and  the  relationship  with  national  law  has  caused  practical 
difficulties.133  

The internal coherence of the Regulation as well as its relationship to the different policies, 
including  the  Treaty  objectives,  EU  instruments  in  the  field  of  judicial  cooperation  and 
national law and bilateral/multilateral agreements, is presented in detail below.  

5.4.1  Internal coherence 

A legal analysis of the internal coherence of the Regulation and other sources, including the 
consultations  carried  out,  suggest  that  the  Regulation  is  internally  coherent.  The  academic 
literature  and  the  case  law  as  well  as  prior  evaluations  and  the  consultations  carried  out  to 
underpin  this  evaluation  have  not  produced  any  evidence  of  internal  contradictions  or 
incoherence. 

5.4.2  General Treaty objectives 

The objectives of Regulation (EC) 1206/2001 are coherent with the EU Treaty framework.  

Regulation (EC) 1206/2001 is part of the EU framework on judicial cooperation in civil and 
commercial  matters  and  contributes  to  the  EU  objective  to  establish  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. Furthermore, the Regulation contributes to the EU objective of 
establishing an internal market (Article 26 TFEU).  

Regulation  (EC)  1206/2001  contributes to  the  area  of  freedom,  security  and  justice  and  the 
functioning  of  the  internal  market  by  facilitating  the  taking  of  evidence  in  the  context  of 
cross-border legal proceedings. No evidence has been identified that points to issues in this 
respect.  

5.4.3  Relevant EU instruments in the field of judicial cooperation 

The other EU instruments/policies in the field of judicial cooperation generally complement 
Regulation  (EC)  1206/2001,  including,  for  example,  by  providing  rules  on  the  jurisdiction 

133 See below table 10. 

50 

 
 
 
 
 
 
 
 
 
                                                            
and recognition of judgements in civil and commercial matters (Brussels Ia, Brussels IIa and 
the  Maintenance  Regulations).  No  contradictions  or  other  serious  hurdles  have  been 
identified.  

Certain  overlaps  may  exist  with  the  Brussels  IIa  and  Maintenance  Regulations,  notably  as 
concerns the tasks of the Central Bodies to collect information concerning the situation of the 
child. With respect to Brussels IIa, this led to a lack of clarity as to whether Regulation (EC) 
1206/2001 also applies to such situations. This aspect is a potential area of improvement in 
order to provide clarification. 

An overview of the most relevant instruments or policies,134 their main contents, as well as 
their relationship to Regulation (EC) 1206/2001 including potential difficulties is provided in 
the following table.  

134 The list is not exhaustive. The focus is on the most relevant instruments, in particular those that have direct 

links or in relation to which problems have arisen.  

51 

 
 
 
 
                                                            
Table 10: EU instruments in the field of judicial cooperation and their relationship 
to Regulation (EC) 1206/2001 

Instrument 
Service 
Regulation 

Ia 
Brussels 
Regulation135 

Main contents  
-  Common  rules  on  the 
serving  of  documents  in 
cross-border 
proceedings  in  civil  and 
commercial matters.  

-  Harmonised 

rules  on 
international  jurisdiction 
in  civil  and  commercial 
matters.  
-  Recognition 
enforcement 
judgments. 

and 
of 

Brussels 
IIa 
Regulation137 

-  Harmonised 

rules  on 
international  jurisdiction 
in family matters.  

-  Recognition 
enforcement 
judgments. 

and 
of 

Relationship  
-  The two Regulations have the same aims and are 
instruments  are 
complementary.  Both 
applied 
cross-border 
in 
in 
proceedings  in  civil  or  commercial  matters,  but 
cover different procedural aspects. 

proceedings 

legal 

-  Complements  Regulation  (EC)  1206/2001  in 
proceedings  concerning  civil  and  commercial 
matters (excluding family matters). 

-  A  problem  concerning  the  relation  between  the 
Brussels  Ia  Regulation  and  Regulation  (EC) 
1206/2001  exists  with  regard  to  provisional 
measures in the meaning of Article 35 Brussels Ia 
Regulation.136   

-  Complements  Regulation  (EC)  1206/2001  in 
proceedings  concerning  family  matters.  It  is 
stated 
the  Brussels  IIa 
Regulation  that  the  hearing  of  the  child  in 
parental  responsibility  cases  may  take  place 
under Regulation (EC) 1206/2001. 

in  recital  (20)  of 

-  Interviewees  highlighted 

that 

there  may  be 
confusion  in  practice concerning the relationship 
between  the  two  instruments,  based  on  an 
overlap. Article 55 of the Brussels IIa Regulation 
the 
that  central  authorities  under 
indicates 
Brussels 
IIa  Regulation  may  “collect  and 
exchange  information:  (i)  on  the  situation  of  the 
child;  (ii)  on  any  procedures  under  way;  or  (iii) 
on decisions taken concerning the child”. On this 
basis,  interviewees  highlighted  cases  in  which 
courts  have  denied  applying  Regulation  (EC) 
IIa 
that 
stating 
1206/2001, 
Regulation should be used instead. 

the  Brussels 

Maintenance 
Regulation138 

-  Harmonised 

rules  on 
international  jurisdiction 
to 
in  matters  relating 
maintenance obligations.  

-  Complements  Regulation  (EC)  1206/2001  in 
proceedings concerning maintenance obligations.  
-  Similar  to  the  Brussels  IIa  Regulation,  the 
Maintenance  Regulation  includes  tasks  for  the 

135 Regulation (EU) No 1215/2012 on jurisdiction and the recognition and enforcement of judgments in 

civil and commercial matters, OJ L 351, 20.12.2012, p. 1.  

136 The CJEU has decided in the case St. Paul Dairy Industries NV (C-104/03 (2005) ECR I-3481) that the 
provisional hearing of a witness under Dutch law is not a provisional measure in the meaning of 
Article 24 Brussels Convention (the predecessor provision to Article 35 Brussels Ia Regulation) but is 
governed by Regulation (EC) 1206/2001. See also Consideration 25 Sentence 2 to the Brussels Ia 
Regulation. 

137 Council Regulation (EC) No 2201/2003 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.  

138 Council Regulation (EC) No 4/2009 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.  

52 

 
                                                            
 
-  Recognition 
enforcement 
judgments. 

and 
of 

rules  on 

-  Harmonised 
international 
jurisdiction, for example 
concerning  successions 
and 
and 
wills 
insolvency.  
-  Recognition 
enforcement 
judgments. 

and 
of 

-  Common 

procedural 
rules  for  simplified  and 
accelerated  cross-border 
in  civil  and 
litigation 
commercial 
disputes 
concerning  small  sums 
or undisputed claims.  

(EC)  1206/2001 

that  may  overlap  with 
Central  Authorities 
(Article  51). 
Regulation 
However,  it  explicitly  states  that  such  tasks 
should  be  carried  out  without  prejudice  to 
Regulation  (EC)  1206/2001  (Article  51(2)(g)). 
This was welcomed by one of the interviewees.   
-  Complement  Regulation  (EC)  1206/2001  in  the 

proceedings these instruments apply to.  

-  No issues have been identified.  

those 

-  Similar to Regulation (EC) 1206/2001, these two 
Regulations  also  contain  rules  on  the  taking  of 
evidence.  The  provisions,  however,  differ  from 
and  complement 
in  Regulation  (EC) 
1206/2001. For example, under the Small Claims 
Regulation,  the  court  shall  use  the  simplest  and 
taking 
of 
least 
evidence.(Article  9  of 
the  Small  Claims 
Regulation143).  These  rules  are  suitable  to  the 
these 
specific 
instruments.  

burdensome  method 

procedures 

governed 

in 

to 

to 

Other 
specific 
instruments 
relating 
cross-border 
cases  in  civil 
and 
commercial 
matters, 
including 
relating 
successions 
and  wills139 
and 
insolvency140.  
Small  claims 
Regulation141 
the 
and 
European 
Order 
Payment 
Regulation142 
for 
uncontested 
pecuniary 
claims 

for 

-  No  issues  have  been  reported  by  any  of  the 
interviewees.  However,  it  was  highlighted  that 
attention  should  be  paid  to  the  relationship 
between  Regulation  (EC)  1206/2001  and  the 
Small Claims Regulation.  

139 Regulation (EU) No 650/2012 on jurisdiction, applicable law, recognition and enforcement of decisions 
and acceptance and enforcement of authentic instruments in matters of succession and on the creation 
of a European Certificate of Succession, OJ L 201, 27.7.2012, p. 107.  

140 Regulation (EU) 2015/848 on insolvency proceedings, OJ L 141, 5.6.2015, p. 19.  
141 Regulation (EC) No 861/2007 establishing a European Small Claims Procedure, OJ L 199, 31.7.2007, p. 

1.  

142 Regulation (EC) No 1896/2006 creating a European order for payment procedure, OJ L 399, 

30.12.2006, p. 1.  

143 The Small Claims Regulation, however, does only deal with the taking of evidence by a court within its 
own territory. If it is necessary to take evidence in another Member State (for example by hearing a 
witness residing there by tele- or videoconference) Article 8(2) of the revised text of the Small Claims 
Regulation, as applicable since 14 July 2017, expressly refers to Regulation (EC) 1206/2001.  

53 

 
 
 
                                                            
 
5.4.4  National law  

Generally, there are no frictions in the interplay between the Regulation and national 
law except the two following issues: 

  Scope of the Regulation in relation to national law;  
  Use of national law for the taking of evidence. 

The scope ratione materiae of Regulation (EC) 1206/2001, as defined by Article 1(1), is 
limited  to  two  methods  of  taking  evidence,  namely  the  taking  of  evidence  by  the 
requested court (Article 10-16) following a request from the requesting court of another 
Member  State,  and  the  taking  of  evidence  directly  by  the  requesting  court  in  another 
Member State (Article 17). 

However,  the  Regulation  does  not  contain  any  provision  governing  or  excluding  the 
possibility for EU courts to collect evidence by other methods than those prescribed by 
the Regulation, such as summoning a witness in line with its national law. On this basis, 
the  Regulation  only  applies  if  the  court  of  a  Member  State  decides  to  take  evidence 
according to one of the two methods provided for in the Regulation.144  

The  fact  that  the  Regulation  exists  alongside  with  other  potential  methods  to  collect 
evidence does not appear to be a major hurdle. On the contrary, interviewees appreciated 
the fact that other methods may be used in addition to those specified in the Regulation, 
depending on what is considered most efficient in the case at hand. This is thus coherent 
with the objective of the Regulation to ensure efficient and speedy taking of evidence.145 
On  the  other  hand,  the  parallel  application  of  the  Regulation  and  other  channels  under 
national  law  causes,  however,  legal  uncertainty  because  courts  must  always  take  two 
different legal regimes (European and national) into account when deciding on the most 
appropriate  channel  for  taking  evidence  abroad.  In  fact,  the  relationship  of  Regulation 
(EC) 1206/2001 with national law is not entirely clear for all professionals applying the 
Regulation. For example, the question has been raised by courts in Estonia when national 
methods  for  the  takings  of  evidence  may  be  used  instead  of  those  prescribed  in  the 
Regulation.  

For requests under Regulation (EC) 1206/2001, the evidence is either taken under the law 
of the requested Member State (Article 10 ff.)  or  the requesting Member State (Article 
17).  

5.4.5  The Hague Conventions and other bilateral or multilateral agreements 

144 This is supported by the CJEU’s interpretation of the Regulation: CJEU 06.09.2012 - C-170/11 - 

Lippens/Kortekaas, unalex EU-532; CJEU 21.02.2013 - C-332/11 - ProRail BV/Xpedys NV et.al., 
unalex EU-546.  

145 This was also the finding of the Report from the Commission 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, 5.12.2007, COM(2007) 769 final, p. 17. 

54 

 
 
 
 
                                                            
Regulation (EC) 1206/2001 is coherent with the Hague Conventions and other bilateral 
or multilateral agreements. 

Article 21(1) of Regulation (EC) 1206/2001 stipulates that the Regulation prevails over 
other  bilateral  of  multilateral  agreements  or  arrangements  of  the  Member  States,  in 
particular  the  Hague  Convention  of  1  March  1954  on  Civil  Procedure  and  the  Hague 
Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial 
Matters. These continue to apply in cases outside the scope of the Regulation where all 
Member States concerned are a party to the Hague Conventions.146  

In  addition,  Member  States  are  free  to  maintain  or  conclude  bilateral  or  multilateral 
agreements  or  arrangements  to  further  facilitate  the  taking  of  evidence  in  cross-border 
civil  and  commercial  cases,  as  long  as  these  are  compatible  with  Regulation  (EC) 
1206/2001  (Art.  21(2)).  Based  on  the  information  available  on  the  e-Justice  portal,  at 
least nine Member States have one or more agreements relating to the taking of evidence 
in place.147  

No difficulties in relation to the coherence of the Regulation with the Hague Conventions 
and other bilateral or multilateral agreements were identified based on the research and 
consultations carried out by the study.  

5.4.6   Conclusion 

The  Regulation  is  largely  coherent  internally,  as  well  as  with  other  EU  policies,  which 
have similar objectives, and national law. 

5.5  EU added value 

The  EU  added  value  test  is  performed  on  the  basis  of  the  effectiveness  and  efficiency 
evaluation  criteria.  The  following  section  presents  the  main  benefits  of  the  EU 
intervention,  and  explains  to  what  extent  the  positive  effects  could  not  have  been 
achieved at national level. 

In areas which do not fall within the EU’s exclusive competence, the Union should act 
only  if  and  in  so  far  as  the  objectives  of  the  proposed  action  cannot  be  sufficiently 
achieved by the Member States alone (Article 5 TEU). Thus, it is necessary to determine 
whether the objectives of Regulation (EC) 1206/2001 could also be achieved without EU 
action. 

146 Cf. Mainstrat (2007), Study on the application of Council Regulation (EC) No 1206/2001 on the taking 

of evidence in civil or commercial matters, pp. 15-16, available: 
http://ec.europa.eu/civiljustice/publications/docs/final_report_ec_1206_2001_a_09032007.pdf 
147 Nine Member States indicated that they do not currently have such agreements in place. For the other 
Member States, the information is not available on the English version of the e-Justice portal.  

55 

 
 
 
                                                            
The  objective  of  Regulation  (EC)  1206/2001  is  to  facilitate  the  taking  of  evidence  in 
cross-border  cases.  Before  the  Regulation  was  in  place,  this  was  done  by  means  of 
bilateral  and  multilateral  agreements  or  on  the  basis  of  national  law  (e.g.  summoning 
witnesses directly to the court in which the proceedings are held). The main benefits of 
the  Regulation  according  to  the  stakeholders  consulted  as  part  of  the  study  and  other 
sources include the introduction of standard methods for the taking of evidence that are 
used  in  the  whole  EU,  including  based  on  court-to-court  communication  and  standard 
forms.148  While  it would also be  possible  for Member  States to  establish court-to-court 
communication  and  standard  forms  on  a  bilateral  or  multilateral  basis,149  it  is  unlikely 
that  a  common  approach  within  the  EU  would  develop  that  way.  In  addition,  a  clear 
improvement compared to the previous system could be identified.150  

Nevertheless,  as  pointed  out  above,  where  taking  of  evidence  abroad  is  necessary  it  is 
often  effected  outside  the  Regulation  in  accordance  with  national  law.  This  is  not 
necessarily  a  problem  since  the  Regulation  by  its  current  design  is  non-mandatory  and 
admits  the  taking  of  evidence  under  national  law  where  considered  preferable.  But  the 
parallel  applicability  of  the  Regulation  and  other  channels  under  national  law  causes 
some  legal  uncertainty  because  courts  must  always  take  two  different  legal  regimes 
(European and national) into account when deciding on the most appropriate channel for 
taking  evidence  abroad.  Measures  addressing  the  reasons  that  make  the  application  of 
national law outside the Regulation attractive or possibly bringing effective and efficient 
methods  existing  under  national  law  within  the  scope  of  the  Regulation  could  further 
improve the situations.   

This leads to the conclusion that the added value brought by the EU action is displayed in 
particular in those cases in which the Regulation is applied by courts, while cross-border 
taking  of  evidence  also  works  without  the  Regulation  in  many  other  cases  due  to  its 
specific non-mandatory character. This flexibility was appreciated by stakeholders, who 
indicated that the method for taking of evidence always depends on the specific situation. 
In  addition,  the  non-application  of  the  Regulation  even  in  cases  where  that  would  be 
advantageous  can  partially  also  be  explained  by  a  lack  of  awareness  of  legal 
professionals,  specifically  against  the  background  of  its  non-mandatory  nature,  which 
makes it tempting for courts to stick to methods under their national law they are more 
familiar with. Thus, it is possible that the Regulation might bring additional added-value 
if it was applied in a higher share of cases than it is today.   

Therefore,  in  spite  of  the  limitations,  action  at  EU  level  was  able  to  provide  a  clear 
added-value  in  those  cases  the  Regulation  was  applied,  as  EU  action  contributed  to 

148 These points were raised in the interviews conducted as part of this study as well as in the following 

sources: Report from the Commission 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, 5.12.2007, COM(2007) 769 final, p. 5; Mainstrat (2007), Study on the 
application of Council Regulation (EC) No 1206/2001 on the taking of evidence in civil or commercial 
matter, pp. 7, 8 available: 
http://ec.europa.eu/civiljustice/publications/docs/final_report_ec_1206_2001_a_09032007.pdf 

149 Developed based on the forms included in the Hague Convention. 
150 Ibid.  

56 

 
                                                            
achieving the relevant objectives in a way not possible at national level because judicial 
cooperation mechanism cannot be put in place by Member States alone.  

6.  CONCLUSIONS 

Overall, Regulation (EC) 1206/2001 has made a contribution to achieving its general as 
well  as  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 
increased the efficiency of legal proceedings– both compared to the Hague Convention 
and  over  time  between  2001  and  2017.  The  Regulation  thus  contributes  to  an  area  of 
freedom, security and justice and a 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. 

There  is  room  for  improvement  based  on  a  number  of  obstacles  identified.  These 
obstacles  are  to  a  very  significant  extent  related  to  delays  and  costs  for  businesses  and 
citizens caused by the failure to exploit the potential of modern technologies for speedier 
communication and direct taking of evidence. The most striking examples in that regard 
are the lack of use of electronic communication in exchanges between the authorities and 
courts of Member States which are still very predominantly paper-based on the one hand 
and the only marginal use of electronic communication for the direct taking of evidence, 
in  particular  videoconferencing.  The  uptake  of  modern  technologies  is  not  currently  an 
obligation  under  the  Regulation  itself,  but  depends  entirely  on  individual  efforts  in 
Member  States  to  introduce  modern  technologies  in  the  judiciary and  the  overall  move 
towards digitisation, and this has led to very slow progress in absolute terms but also in 
comparison to the use of modern technologies in domestic settings.  

The  Regulation  by  its  design  is  not  mandatory  and  leaves  courts  the  possibility  to  take 
evidence abroad either under the Regulation or on the basis of their national law where 
perceived preferable or more efficient. This has led to a significant but limited uptake of 
the Regulation in practice. The flexibility and a bigger range of options to choose from is 
not a problem per se and may actually contribute to the overall efficiency of the system 
of cross-border taking  of evidence but  it has  also led some  legal uncertainty  caused by 
the parallel application of the Regulation and channels under national law and could be 
regarded as a potential area for improvements in terms of providing greater legal clarity 
whilst keeping the potential for efficiency gains afforded by the current situation. 

57