Cross-Border Evidence in Civil Matters: EU Taking of Evidence Regulation

Introduction

Regulation (EU) 2020/1783 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters — recasting Regulation (EC) No 1206/2001 — establishes the legal framework for cross-border taking of evidence in civil and commercial proceedings. The Regulation is an instrument of judicial cooperation in civil matters under Article 81 TFEU, designed to facilitate the efficient operation of the internal market by ensuring that evidence located in one Member State can be obtained effectively for use in proceedings pending in another. The Regulation applies uniformly to all Member States except Denmark, which opted out, and Ireland, which exercised its opt-in.

Scope and Applicability

The Regulation applies in civil or commercial matters where a court of a Member State requests: (a) the competent court of another Member State to take evidence; or (b) to take evidence directly in another Member State. It covers any form of evidence, including witness testimony, expert evidence, document inspection, site visits, and the examination of parties. Evidence may be taken for use in pending proceedings or in contemplated proceedings where the request is made to preserve evidence that may be needed in future litigation.

Excluded matters include: (a) taking of evidence in criminal proceedings, which is governed by the European Investigation Order (Directive 2014/41/EU); (b) evidence required for administrative proceedings, unless the administrative authority acts as a court; (c) arbitration, including evidence taken in support of arbitration proceedings; (d) evidence that must be obtained directly by the parties without court involvement; and (e) interim measures of protection (preservation of assets), which are governed by the Brussels I bis Regulation.

Request to the Competent Court

The primary method for taking cross-border evidence is through a request from the requesting court to the competent court of the Member State where the evidence is located (Article 1(1)(a)). Requests are transmitted directly between courts — from the requesting court to the designated central body or directly to the competent court (Article 6). The request must be made on a standardised form (Annex I), specifying: (a) the requesting and requested courts; (b) the names and addresses of the parties and their representatives; (c) the nature and subject matter of the case and a summary of the facts; (d) a description of the evidence to be taken; (e) the questions to be put to the persons to be examined or the documents to be inspected; (f) any special procedures or formalities requested; (g) whether the parties may be present; (h) the time limit for execution; and (i) language requirements.

Transmission and Communications

The Regulation modernises the transmission mechanism. Requests and communications between courts must be transmitted “by any appropriate means,” including electronic transmission, fax, or postal service (Article 7). The European e-Justice Portal provides access to national court contact details, forms, and procedural information. The European Judicial Network in civil and commercial matters (Article 21) facilitates cooperation, providing a secure communication platform and supporting the resolution of practical difficulties.

Execution of the Request

The requested court must execute the request expeditiously, normally within 90 days of receipt (Article 11). The court applies its own law regarding the procedures for taking evidence (Article 12(1)), unless the requesting court requests a special procedure that is compatible with the law of the executing state (Article 12(2)). The requested court must inform the requesting court without delay: (a) where the request is incomplete (Article 10); (b) where the request cannot be executed within 90 days, with reasons for the delay and an estimated execution date (Article 11); (c) of the date and place of the taking of evidence (Article 13); and (d) where the evidence is needed for on-site inspection or expert examination (Article 14).

The requested court may refuse to execute the request only on limited grounds: (a) the request does not fall within the scope of the Regulation; (b) the requested measure does not fall within the functions of the judiciary under the law of the executing state; or (c) the requesting court has not complied with the form and language requirements. The requested court may not refuse execution on grounds of exclusive national jurisdiction over the subject matter or on grounds that the law of the executing state does not permit the taking of evidence for the type of proceedings.

Direct Taking of Evidence

Article 19 permits the requesting court to take evidence directly in the territory of another Member State, subject to the executing Member State’s conditions. Direct taking of evidence is voluntary — no compulsion may be exercised against witnesses — and must not require judicial assistance from the executing state. The requesting court must submit a request to the central body or competent authority of the executing state 30 days in advance, specifying the nature of the evidence, the names of the parties, the date, time, and venue, and any special technical requirements.

The executing state may designate conditions for direct evidence taking, including: (a) the presence of a representative of the executing Member State; (b) the use of a particular language; (c) restrictions on the location (court premises only); or (d) limitations on the categories of persons who may be examined. The executing state may not refuse direct taking of evidence unless it is contrary to fundamental principles of its law.

Hearing by Video Conference and Modern Communication Technologies

A significant innovation of the 2020 Recast is the explicit encouragement of video conferencing and other communication technologies (Recital 33 and Article 20). The requested court must use video conferencing where available and appropriate, particularly for hearing witnesses, experts, and parties located in another Member State. Video conferencing reduces costs, eliminates travel delays, and enables the requesting court to observe demeanour and assess credibility. The requesting and requested courts must agree on the technical arrangements, including audio and video quality, the presence of interpreters, and the procedures for administering oaths.

The Regulation does not impose video conferencing as a mandatory method — the requesting court may specify in the request whether video conferencing is preferred or required — but the 2020 reform reinforces the principle that technology should be used to facilitate cross-border evidence gathering.

Costs and Legal Aid

Article 17 provides that the execution of the request shall not give rise to a claim for reimbursement of fees or costs, except for fees paid to experts and interpreters and costs arising from the use of special procedures requested by the requesting court. The requesting court is responsible for costs of video conferencing, interpretation, and translation where the parties do not prevail. Where a party lacks sufficient resources, legal aid under Directive 2003/8/EC on legal aid for cross-border disputes applies to the costs of evidence taking.

Data Protection and Privacy

The Regulation interacts with the GDPR: the transfer of personal data embedded in evidence requests and responses must comply with Regulation (EU) 2016/679 (Articles 22–23). Courts processing personal data in the context of cross-border evidence taking must ensure data minimisation, purpose limitation, and storage limitations, and must implement appropriate technical and organisational security measures.

Relationship with Other Instruments

The Regulation operates alongside other EU instruments on civil judicial cooperation. The Service of Documents Regulation (Regulation 2020/1784) governs the transmission of judicial and extrajudicial documents, ensuring that the evidentiary phase of proceedings is supported by adequate notification. The Brussels I bis Regulation (Regulation 1215/2012) provides the jurisdictional framework for the underlying proceedings, and the Rome I and Rome II Regulations determine the applicable law governing evidence and procedure. The Regulation does not affect international agreements concluded by Member States with third countries, subject to the Commission’s assessment of compatibility with EU law.