REPORT on the 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

19.12.2018 - (COM(2018)0378 – C8‑0242/2018 – 2018/0203(COD)) - ***I

Committee on Legal Affairs
Rapporteur: Emil Radev

DRAFT EUROPEAN PARLIAMENT LEGISLATIVE RESOLUTION

on the 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)0378 – C8‑0242/2018 – 2018/0203(COD))

(Ordinary legislative procedure: first reading)

The European Parliament,

–  having regard to the Commission proposal to Parliament and the Council (COM(2018)0378),

–  having regard to Article 294(2) and Article 81 of the Treaty on the Functioning of the European Union, pursuant to which the Commission submitted the proposal to Parliament (C8-0243/2018);

-  having regard to Article 294(3) of the Treaty on the Functioning of the European Union,

–  having regard to Rule 59 of its Rules of Procedure,

–  having regard to the report of the Committee on Legal Affairs (A8-0477/2018),

1.  Adopts its position at first reading hereinafter set out;

2.  Calls on the Commission to refer the matter to Parliament again if it replaces, substantially amends or intends to substantially amend its proposal;

3.  Instructs its President to forward its position to the Council, the Commission and the national parliaments.

Amendment    1 Proposal for a regulation Recital 1
Text proposed by the Commission	Amendment
(1)  In the interests of the proper functioning of the internal market, it is necessary to further improve and expedite cooperation between courts in the taking of evidence.	(1)  In the interests of the proper functioning of the internal market and the development of a European area of civil justice governed by the principle of mutual trust and mutual recognition of judgments, it is necessary to further improve and expedite cooperation between courts in the Member States in relation to the taking of evidence.
Amendment    2 Proposal for a regulation Recital 2 a (new)
Text proposed by the Commission	Amendment
	(2a)  For the purposes of this Regulation, the term ‘court’ should be given a broad meaning so as to cover not only courts in the strict sense of the word, that exercise judicial functions, but also other bodies or authorities which are competent under national law to take evidence in accordance with this Regulation, such as enforcement authorities or notaries in certain Member States and in specific situations.
Amendment    3 Proposal for a regulation Recital 2 b (new)
Text proposed by the Commission	Amendment
	(2b)  It is essential that effective means of obtaining, preserving and presenting evidence are available, and that due regard is given to the rights of defence and the need for protection of confidential information. In this context, it is important to encourage the use of modern technology.
Amendment    4 Proposal for a regulation Recital 3
Text proposed by the Commission	Amendment
(3)  In order to ensure speedy transmission of requests and communications, all appropriate means of modern communication technology should be used. Therefore, as a rule, all communication and exchanges of documents should be carried out through a decentralised IT system composed of national IT systems.	(3)  In order to effectively ensure direct and speedy transmission of requests and communications, all appropriate means of modern communication technology should be used, and in that regard the constant development of such technology should be taken into account. Therefore, as a rule, all communication and exchanges of documents should be carried out through a decentralised IT system composed of national IT systems.
Amendment    5 Proposal for a regulation Recital 3 a (new)
Text proposed by the Commission	Amendment
	(3a)  The decentralised IT system should be based on the e-CODEX system and should be managed by eu-LISA. Adequate resources should be made available to eu-LISA so that such a system can be introduced and kept operational, as well as to provide technical support in the event of problems in the operation of the system. The Commission should submit, as soon as possible, and in any event before the end of 2019, a proposal for a Regulation on cross-border communication in judicial proceedings (e-CODEX).
Amendment    6 Proposal for a regulation Recital 4
Text proposed by the Commission	Amendment
(4)  In order to ensure mutual recognition of digital evidence such evidence taken in a Member State in accordance with its law should not be denied recognition as evidence in other Member States only because of its digital nature.	(4)  In order to ensure mutual recognition of digital evidence, such evidence taken in a Member State in accordance with its law should not be denied recognition as evidence in other Member States because of its digital nature. That principle should be without prejudice to determining, in accordance with national law, the level of quality and the value of evidence, regardless of its digital or non-digital nature.
Amendment    7 Proposal for a regulation Recital 5 a (new)
Text proposed by the Commission	Amendment
	(5a)  The procedures for taking, preserving and presenting evidence should ensure that the procedural rights of the parties, as well as the protection, integrity and confidentiality of personal data and privacy, are protected in accordance with Union law.
Amendment    8 Proposal for a regulation Recital 6
Text proposed by the Commission	Amendment
(6)  Modern communications technology, in particular videoconferencing which is an important means to simplify and accelerate the taking of evidence, is currently not used to its full potential. Where evidence is to be taken by hearing a person domiciled in another Member State as witness, party or expert, the court should take that evidence directly via videoconference, if available to the respective courts, where it deems the use of such technology appropriate on account of the specific circumstances of the case.	(6)  Modern communications technology, in particular videoconferencing which is an important and direct means to simplify and accelerate the taking of evidence, is currently not used to its full potential. Where evidence is to be taken by hearing a person domiciled in another Member State as witness, party or expert, the court should take that evidence directly via videoconference or via any other appropriate distance communication technology available to the respective courts, unless, on account of the specific circumstances of the case, the use of such technology is deemed inappropriate for the fair conduct of the proceedings. The rules on the use of such means of communication should be technology-neutral and cater for future communication solutions. Where required by the national law of the Member State concerned, the use of such technology should be subject to the consent of the person to be heard.
Amendment    9 Proposal for a regulation Recital 7
Text proposed by the Commission	Amendment
(7)  In order to facilitate the taking of evidence by diplomatic officers or consular agents, such persons may, in the territory of another Member State and within the area where they exercise their functions, take evidence without the need for a prior request by hearing nationals of the Member State which they represent without compulsion in the context of proceedings pending in the courts of the Member State which they represent.	(7)  In order to facilitate the taking of evidence by diplomatic staff or consular agents, such persons may, in the territory of another Member State where they are accredited, take evidence at the premises of their diplomatic mission or consulate without the need for a prior request by hearing nationals of the Member State which they represent for proceedings pending in the courts of the Member State which they represent, provided that the person to be heard voluntarily cooperates in the taking of evidence.
Amendment    10 Proposal for a regulation Recital 7 a (new)
Text proposed by the Commission	Amendment
	(7a)  It is important to ensure that this Regulation is applied in compliance with Union data protection law and that it respects the protection of privacy as enshrined in the Charter of Fundamental Rights of the European Union. It is also important to ensure that any processing of the personal data of natural persons under this Regulation is undertaken in accordance with Regulation (EU) 2016/679 and Directive 2002/58/EC. Personal data under this Regulation should be processed only for the specific purposes set out in this Regulation.
Amendment    11 Proposal for a regulation Recital 8
Text proposed by the Commission	Amendment
(8)  Since the objectives of this Regulation cannot be sufficiently achieved by the Member States and can rather, by reason of the creation of a legal framework ensuring the speedy transmission of requests and communications concerning the performance of taking of evidence, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on the European Union. In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve that objective.	(8)  Since the objectives of this Regulation cannot be sufficiently achieved by the Member States and can rather, by reason of the creation of a simplified legal framework ensuring the direct, effective and speedy transmission of requests and communications concerning the performance of taking of evidence, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on the European Union. In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve that objective.
Amendment    12 Proposal for a regulation Recital 8 a (new)
Text proposed by the Commission	Amendment
	(8a)  This Regulation seeks to improve the efficacy and speed of judicial proceedings by simplifying and streamlining the mechanisms for cooperation in the taking of evidence in cross-border proceedings, while at the same time helping to reduce delays and costs for individuals and businesses. In addition, greater legal certainty, coupled with simpler, streamlined and digitalised procedures can encourage individuals and businesses to engage in cross-border transactions, thereby boosting trade within the Union and hence the functioning of the internal market.
Amendment    13 Proposal for a regulation Recital 11
Text proposed by the Commission	Amendment
(11)  In order to update the standard forms in the Annexes or to make technical changes to those forms, the power to adopt acts in accordance with Article 290 of the Treaty on the Functioning of the European Union should be delegated to the Commission in respect of amendments to the Annexes. It is of particular importance that the Commission carry out appropriate consultations during its preparatory work, including at expert level, and that those consultations be conducted in accordance with the principles laid down in the Interinstitutional Agreement of 13 April 2016 on Better Law-Making*. In particular, to ensure equal participation in the preparation of delegated acts, the European Parliament and the Council receive all documents at the same time as Member States' experts, and their experts systematically have access to meetings of Commission expert groups dealing with the preparation of delegated acts.	(11)  In order to define the detailed arrangements for the functioning of the decentralised IT system and in order to establish the minimum technical standards and requirements for the use of videoconference, the power to adopt acts in accordance with Article 290 of the Treaty on the Functioning of the European Union should be delegated to the Commission. Such delegated acts should guarantee an effective, reliable and smooth transmission of the relevant information through the decentralised IT system, and should ensure that the videoconferencing session guarantees high quality communication and real time interaction. Furthermore, in order to update the standard forms in the Annexes or to make technical changes to those forms, the power to adopt acts in accordance with Article 290 of the Treaty on the Functioning of the European Union should be delegated to the Commission in respect of amendments to the Annexes. It is of particular importance that the Commission carry out appropriate consultations during its preparatory work, including at expert level, and that those consultations be conducted in accordance with the principles laid down in the Interinstitutional Agreement of 13 April 2016 on Better Law-Making*. In particular, to ensure equal participation in the preparation of delegated acts, the European Parliament and the Council receive all documents at the same time as Member States' experts, and their experts systematically have access to meetings of Commission expert groups dealing with the preparation of delegated acts.
Amendment    14 Proposal for a regulation Article 1 – paragraph 1 – point 1 Regulation (EC) No 1206/2001 Article 1 – paragraph 4
Text proposed by the Commission Amendment 4.  In this Regulation, the term ‘court’ shall mean any judicial authority in a Member State which is competent for the performance of taking of evidence according to this Regulation.; 4.  In this Regulation, the term ´court´ shall mean any authority in a Member State which is competent under the laws of that Member State to take evidence according to this Regulation. ;
Amendment    15 Proposal for a regulation Article 1 – paragraph 1 – point 2 Regulation (EC) No 1206/2001 Article 6 – paragraph 1
Text proposed by the Commission Amendment 1.  Requests and communications pursuant to this Regulation shall be transmitted through a decentralised IT system composed of national IT systems interconnected by a communication infrastructure enabling the secure and reliable cross-border exchange of information between the national IT systems. 1.  Requests and communications pursuant to this Regulation shall be transmitted through a decentralised IT system composed of national IT systems interconnected by a communication infrastructure and enabling the safe, secure and reliable cross-border exchange of information, including in real time, between the national IT systems, with due respect for the fundamental rights and freedoms. That decentralised IT system shall be based on e-CODEX.
Amendment    16 Proposal for a regulation Article 1 – paragraph 1 – point 2 Regulation (EC) No 1206/2001 Article 6 – paragraph 2
Text proposed by the Commission Amendment 2.  The general legal framework for the use of trust services set out in Council Regulation (EU) No 910/201420 shall apply to the requests and communications transmitted through the decentralised IT system referred to in paragraph 1. 2.  The general legal framework for the use of qualified trust services set out in Council Regulation (EU) No 910/201420 shall apply to the requests and communications transmitted through the decentralised IT system referred to in paragraph 1. _________________ _________________ 20 Regulation (EU) No 910/2014 of the European Parliament and of the Council of 23 July 2014 on electronic identification and trust services for electronic transactions in the internal market and repealing Directive 1999/93/EC (OJ L 257, 28.8.2014, p. 73). 20 Regulation (EU) No 910/2014 of the European Parliament and of the Council of 23 July 2014 on electronic identification and trust services for electronic transactions in the internal market and repealing Directive 1999/93/EC (OJ L 257, 28.8.2014, p. 73).
Amendment    17 Proposal for a regulation Article 1 – paragraph 1 – point 2 Regulation (EC) No 1206/2001 Article 6 – paragraph 3
Text proposed by the Commission Amendment 3.  Where requests and communications referred to in paragraph 1 require or feature a seal or handwritten signature, ‘qualified electronic seals’ and ‘qualified electronic signatures’ as defined in Regulation (EU) No 910/2014 of the European Parliament and of the Council may be used instead. 3.  Where requests and communications referred to in paragraph 1 require or feature a seal or handwritten signature, ‘qualified electronic seals’ and ‘qualified electronic signatures’ as defined in Regulation (EU) No 910/2014 of the European Parliament and of the Council may be used instead, provided that it is fully ensured that the persons involved have obtained knowledge of such documents in sufficient time and in a lawful manner.
Amendment    18 Proposal for a regulation Article 1 – paragraph 1 – point 2 Regulation (EC) No 1206/2001 Article 6 – paragraph 3 a (new)
Text proposed by the Commission Amendment   3a.  The Commission is empowered to adopt delegated acts in accordance with Article 20 to supplement this Regulation by establishing the detailed arrangements for the functioning of the decentralised IT system. When exercising that power, the Commission shall ensure that the system guarantees an effective, reliable and smooth exchange of the relevant information, as well as a high level of security in the transmission and the protection of privacy and personal data in line with Regulation (EU) 2016/679 and Directive (EC) 2002/58.
Amendment    19 Proposal for a regulation Article 1 – paragraph 1 – point 2 Regulation (EC) No 1206/2001 Article 6 – paragraph 4
Text proposed by the Commission Amendment 4.  If transmission in accordance with paragraph 1 is not possible due to an unforeseen and exceptional disruption of the decentralised IT system or where such transmission is not possible in other exceptional cases, transmission shall be carried out by the swiftest possible means, which the requested Member State has indicated it can accept. 4.  If transmission in accordance with paragraph 1 is not possible due to an unforeseen and exceptional disruption of the decentralised IT system or where such transmission is not possible in other exceptional cases, transmission shall be carried out by the swiftest possible means that the requested Member State has indicated to be acceptable.
Amendment    20 Proposal for a regulation Article 1 – paragraph 1 – point 4 Regulation (EC) No 1206/2001 Article 17a – title
Text proposed by the Commission Amendment Direct taking of evidence by videoconference Direct taking of evidence by distance communication technology
Amendment    21 Proposal for a regulation Article 1 – paragraph 1 – point 4 Regulation (EC) No 1206/2001 Article 17a – paragraph 1
Text proposed by the Commission Amendment 1.  Where evidence is to be taken by hearing a person domiciled in another Member State as witness, party or expert and the court does not request the competent court of another Member State to take evidence in accordance with Article 1(1)(a), the court shall take evidence directly in accordance with Article 17 via videoconference, if available to the respective courts, where it deems the use of such technology appropriate on account of the specific circumstances of the case. 1.  Where evidence is to be taken by hearing a person domiciled in another Member State as witness, party or expert and the court does not request the competent court of another Member State to take evidence in accordance with Article 1(1)(a), the court shall take evidence directly in accordance with Article 17 via videoconference or via any other appropriate distance communication technology, if available to the respective courts, unless, on account of the specific circumstances of the case, the use of such technology is deemed inappropriate for the fair conduct of the proceedings.
Amendment    22 Proposal for a regulation Article 1 – paragraph 1 – point 4 Regulation (EC) No 1206/2001 Article 17a – paragraph 1 a (new)
Text proposed by the Commission Amendment   1a.  Where required by the national law of the requesting Member State, the use of videoconference or any other appropriate distance communication technology shall be subject to the consent of the person to be heard.
Amendment    23 Proposal for a regulation Article 1 – paragraph 1 – point 4 Regulation (EC) No 1206/2001 Article 17a – paragraph 2
Text proposed by the Commission Amendment 2.  Where a request for direct taking of evidence via videoconference is made, the hearing shall be held in the premises of a court. The requesting court and the central body or the competent authority referred to in Article 3(3) or the court on whose premises the hearing is to be held shall agree on the practical arrangements for the videoconference. 2.  Where a request for direct taking of evidence via videoconference or via any other appropriate distance communication technology is made, the hearing shall be held in the premises of a court. The requesting court and the central body or the competent authority referred to in Article 3(3) or the court on whose premises the hearing is to be held shall agree on the practical arrangements for the videoconference. Those arrangements shall be in line with the minimum technical standards and requirements for the use of videoconference that are defined in accordance with paragraph 3a.
Amendment    24 Proposal for a regulation Article 1 – paragraph 1 – point 4 Regulation (EC) No 1206/2001 Article 17a – paragraph 2 a (new)
Text proposed by the Commission Amendment   2a.  Any electronic system for the taking of evidence shall ensure that professional secrecy and legal professional privilege are protected.
Amendment    25 Proposal for a regulation Article 1 – paragraph 1 – point 4 Regulation (EC) No 1206/2001 Article 17a – paragraph 3 – introductory sentence
Text proposed by the Commission Amendment 3.  Where evidence is taken by videoconference: 3.  Where evidence is taken by videoconference or any other available communications technology:
Amendment    26 Proposal for a regulation Article 1 – paragraph 1 – point 4 Regulation (EC) No 1206/2001 Article 17a – paragraph 3 – point b
Text proposed by the Commission Amendment (b)  if necessary, at the request of the requesting court, the person to be heard or the judge in the requested Member State participating in the hearing, the central body or the competent authority referred to in Article 3(3) shall ensure that the person to be heard or the judge are assisted by an interpreter. ; (b)  if necessary, at the request of the requesting court, the person to be heard or the judge in the requested Member State participating in the hearing, the central body or the competent authority referred to in Article 3(3) shall ensure that the person to be heard or the judge are assisted by a qualified interpreter. ;
Amendment    27 Proposal for a regulation Article 1 – paragraph 1 – point 4 Regulation (EC) No 1206/2001 Article 17a – paragraph 3 a (new)
Text proposed by the Commission Amendment   3a.  The Commission is empowered to adopt delegated acts in accordance with Article 20 supplementing this Regulation by establishing the minimum standards and requirements for the use of videoconference.   When exercising that power, the Commission shall ensure that the videoconferencing session guarantees high quality communication and real time interaction. The Commission shall also ensure, with regard to the transmission of the information, a high level of security and the protection of privacy and of personal data in line with Regulation (EU) 2016/679 and Directive (EC) 2002/58.
Amendment    28 Proposal for a regulation Article 1 – paragraph 1 – point 4 Regulation (EC) No 1206/2001 Article 17a – paragraph 3 b (new)
Text proposed by the Commission Amendment   3b.  The court shall notify the person to be heard, the parties, including their respective legal representatives, of the date, time and place of, and the conditions for participation in, the hearing via videoconference or via any other appropriate distance communication technology. The parties and their legal representatives shall be provided, by the relevant court, with instructions as to the procedure for presenting documents or other material during the hearing via videoconference or via any other appropriate distance communication technology.
Amendment    29 Proposal for a regulation Article 1 – paragraph 1 – point 5 Regulation (EC) No 1206/2001 Article 17b – title
Text proposed by the Commission Amendment Taking of evidence by diplomatic officers or consular agents Taking of evidence by diplomatic staff or consular agents
Amendment    30 Proposal for a regulation Article 1 – paragraph 1 – point 5 Regulation (EC) No 1206/2001 Article 17b – paragraph 1
Text proposed by the Commission Amendment Diplomatic officers or consular agents of a Member State may, in the territory of another Member State and within the area where they exercise their functions, take evidence without the need for a prior request pursuant to Article 17(1), by hearing nationals of the Member State which they represent without compulsion in the context of proceedings pending in the courts of the Member State which they represent.’; Diplomatic staff or consular agents of a Member State may, in the territory of another Member State where they are accredited, take evidence at the premises of the diplomatic mission or consulate without the need for a prior request pursuant to Article 17(1), by hearing nationals of the Member State which they represent for proceedings pending in the courts of the Member State which they represent. Such taking of evidence may only take place with the voluntary cooperation of the person to be heard. The taking of evidence shall be performed under the supervision of the requesting court, in accordance with its national law.’;
Amendment    31 Proposal for a regulation Article 1 – paragraph 1 – point 6 Regulation (EC) No 1206/2001 Article 18a – paragraph 1
Text proposed by the Commission Amendment Digital evidence taken in a Member State in accordance with its law shall not be denied the quality of evidence in other Member States solely due to its digital nature. ; The digital nature of evidence taken in a Member State in accordance with its law shall not be used as a reason to deny the quality of evidence in other Member States. The question of whether the evidence is digital or non-digital in nature shall not be a factor in determining the level of quality and the value of such evidence. ´;
Amendment    32 Proposal for a regulation Article 1 – paragraph 1 – point 6 a (new) Regulation (EC) No 1206/2001 Section 6 a (new) – Article 18b (new)
Text proposed by the Commission Amendment   (6a)  the following Section 6a is inserted after Article 18:   Section 6a   Processing of personal data   Article 18b   Any processing of personal data carried out pursuant to this Regulation, including the exchange or transmission of personal data by the competent authorities, shall be in conformity with Regulation (EU) 2016/679. Any exchange or transmission of information by competent authorities at Union level shall be undertaken in accordance with Regulation (EC) No 45/2001. Personal data which are not relevant for the handling of a specific case shall be immediately deleted.
Amendment    33 Proposal for a regulation Article 1 – paragraph 1 – point 8 Regulation (EC) No 1206/2001 Article 20 – paragraph 2
Text proposed by the Commission Amendment 2.  The power to adopt delegated acts referred to in Article 19(2) shall be conferred on the Commission for an indeterminate period of time from … [date of entry into force of this Regulation]. 2.  The power to adopt delegated acts referred to in Article 6(3a), in Article 17a(3a) and in Article 19(2) shall be conferred on the Commission for a period of 5 years from… [date of entry into force of this Regulation]. The Commission shall draw up a report in respect of the delegation of power not later than nine months before the end of the five-year period. The delegation of power shall be tacitly extended for periods of an identical duration, unless the European Parliament or the Council opposes such extension not later than three months before the end of each period.
Amendment    34 Proposal for a regulation Article 1 – paragraph 1 – point 8 Regulation (EC) No 1206/2001 Article 20 – paragraph 3
Text proposed by the Commission Amendment 3.  The delegation of power referred to in Article 19(2) may be revoked at any time by the European Parliament or by the Council. A decision to revoke shall put an end to the delegation of the power specified in that decision. It shall take effect the day following the publication of the decision in the Official Journal of the European Union or at a later date specified therein. It shall not affect the validity of any delegated acts already in force. 3.  The delegation of power referred to in Article 6(3a), Article 17a(3a) and in Article 19(2) may be revoked at any time by the European Parliament or by the Council. A decision to revoke shall put an end to the delegation of the power specified in that decision. It shall take effect the day following the publication of the decision in the Official Journal of the European Union or at a later date specified therein. It shall not affect the validity of any delegated acts already in force.
Amendment    35 Proposal for a regulation Article 1 – paragraph 1 – point 8 Regulation (EC) No 1206/2001 Article 20 – paragraph 6
Text proposed by the Commission Amendment 6.  A delegated act adopted pursuant to Article 19(2) shall enter into force only if no objection has been expressed either by the European Parliament or by the Council within a period of two months of notification of that act to the European Parliament and the Council or if, before the expiry of that period, the European Parliament and the Council have both informed the Commission that they will not object. That period shall be extended by two months at the initiative of the European Parliament or of the Council. 6.  A delegated act adopted pursuant to Article 6(3a), Article 17a(3a) or Article 19(2) shall enter into force only if no objection has been expressed either by the European Parliament or by the Council within a period of three months of notification of that act to the European Parliament and the Council or if, before the expiry of that period, the European Parliament and the Council have both informed the Commission that they will not object. That period shall be extended by two months at the initiative of the European Parliament or of the Council.
Amendment    36 Proposal for a regulation Article 1 – paragraph 1 – point 9 Regulation (EC) No 1206/2001 Article 22a – paragraph 1
Text proposed by the Commission Amendment 1.  By [two years after the date of application] at the latest, the Commission shall establish a detailed programme for monitoring the outputs, results and impacts of this Regulation. 1.  By [one year after the date of entry into force] at the latest, the Commission shall establish a detailed programme for monitoring the outputs, results and impacts of this Regulation.
Amendment    37 Proposal for a regulation Article 1 – paragraph 1 – point 10 Regulation (EC) No 1206/2001 Article 23 – paragraph 1
Text proposed by the Commission Amendment 1.  No sooner than [five years after the date of application of this Regulation], the Commission shall carry out an evaluation of this Regulation and present a report on the main findings to the European Parliament, the Council and the European Economic and Social Committee. 1.  No later than [four years after the date of application of this Regulation], the Commission shall carry out an evaluation of this Regulation and present a report on the main findings to the European Parliament, the Council and the European Economic and Social Committee, accompanied, where appropriate, by a legislative proposal.

EXPLANATORY STATEMENT

Context of the proposal

Among the EU’s tasks is that of developing a European area of justice in civil matters based on the principles of mutual trust and the mutual recognition of judgments. The area of justice requires judicial cooperation across borders. For this purpose, and to facilitate the proper functioning of the internal market, the EU has adopted legislation on the cross-border service of judicial documents and on cooperation in the taking of evidence. These instruments are crucial in the regulation of judicial assistance in civil and commercial matters between the Member States. Their common purpose is to provide an efficient framework for cross-border judicial cooperation. They have replaced the earlier international, more cumbersome system of the Hague Conventions between the Member States.

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

Council Regulation (EC) No 1206/2001 establishes an EU-wide system for the direct and rapid transmission of requests for the taking and execution of evidence between courts and lays down precise rules as to the form and content of such requests. In particular, it has improved on the relevant Hague Convention by putting in place a modern and efficient system of direct dealings between courts (transmission of requests and re-transmission of evidence taken). It also allows for the direct taking of evidence by courts in other Member States.

Rapporteur’s opinion

The Rapporteur considers that the Commission Proposal is both timely and a good response to the REFIT exercise. It is important that Members States’ courts are given the opportunity to make use of modern technology for the purpose of better and faster access to justice. This is not possible without the necessary adaption of the rules governing taking of evidence, especially in cross-border cases. The current regulation only provides measures additional to those available in national law of the Member States. Therefore, if the Member States’ courts should be able to take full advantage of the new distance communication technology, the amended regulation may need to be complemented with a review of the rules applicable also on the national level in the Member States.

A number of further clarifications ought to be made in the Commission Proposal. As regards the definition of court, it should be clarified that it is a rule for the mutual recognition of rules in the Member States of which entities is competent to take evidence.

Furthermore, the regulation ought to be technology neutral. For this purpose, the concept of distance communication technology ought to be used instead of videoconference only. It ought also to be clarified that any such distance communication technology used, should ensure the application of professional secrecy and legal professional privilege.

As regards the proposed rule to allow taking of evidence by diplomatic staff, it would be prudent to align it with the 1961 Vienna convention on diplomatic relations. Such personnel ought only to be able to take evidence in the Member State where they are accredited and at the premises of the diplomatic mission or consulate of its country.

The rapporteur believes that during taking of evidence the person to be heard, the parties and their lawyers are duly informed about all the conditions for participation in videoconference or other distance communication technology, as well as the procedure to be followed in presenting evidence.

In the field of the fast development of the communication technologies, the Rapporteur believes that processing and protection of personal data is very important.

PROCEDURE – COMMITTEE RESPONSIBLE

Title	Cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters
References	COM(2018)0378 – C8-0242/2018 – 2018/0203(COD)
Date submitted to Parliament	31.5.2018
Committee responsible        Date announced in plenary	JURI 10.9.2018
Rapporteurs        Date appointed	Emil Radev 24.9.2018
Discussed in committee	11.10.2018	20.11.2018
Date adopted	10.12.2018
Result of final vote	+: –: 0:	18 0 0
Members present for the final vote	Joëlle Bergeron, Jean-Marie Cavada, Kostas Chrysogonos, Mady Delvaux, Mary Honeyball, Sajjad Karim, Sylvia-Yvonne Kaufmann, António Marinho e Pinto, Julia Reda, Evelyn Regner, Pavel Svoboda, Axel Voss, Francis Zammit Dimech, Tadeusz Zwiefka
Substitutes present for the final vote	Sergio Gaetano Cofferati, Luis de Grandes Pascual, Tiemo Wölken, Kosma Złotowski
Date tabled	19.12.2018

FINAL VOTE BY ROLL CALL IN COMMITTEE RESPONSIBLE

18	+
ALDE	Jean-Marie Cavada, António Marinho e Pinto
ECR	Kosma Złotowski
EFDD	Joëlle Bergeron
GUE/NGL	Kostas Chrysogonos
PPE	Daniel Buda, Luis de Grandes Pascual, Pavel Svoboda, Axel Voss, Francis Zammit Dimech, Tadeusz Zwiefka
S&D	Sergio Gaetano Cofferati, Mady Delvaux, Mary Honeyball, Sylvia-Yvonne Kaufmann, Evelyn Regner, Tiemo Wölken
VERTS/ALE	Julia Reda

0	-

0	0

Key to symbols:

+  :  in favour

-  :  against

0  :  abstention