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 | ||||||||||||||||||||||||
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(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 | ||||||||||||||||||||||||
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(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 | ||||||||||||||||||||||||
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(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 | ||||||||||||||||||||||||
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(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 | ||||||||||||||||||||||||
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(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 | ||||||||||||||||||||||||
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(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 | |||||||||||||||||||||||||
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Amendment 15 Proposal for a regulation Article 1 – paragraph 1 – point 2 Regulation (EC) No 1206/2001 Article 6 – paragraph 1 | |||||||||||||||||||||||||
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Amendment 16 Proposal for a regulation Article 1 – paragraph 1 – point 2 Regulation (EC) No 1206/2001 Article 6 – paragraph 2 | |||||||||||||||||||||||||
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Amendment 17 Proposal for a regulation Article 1 – paragraph 1 – point 2 Regulation (EC) No 1206/2001 Article 6 – paragraph 3 | |||||||||||||||||||||||||
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Amendment 18 Proposal for a regulation Article 1 – paragraph 1 – point 2 Regulation (EC) No 1206/2001 Article 6 – paragraph 3 a (new) | |||||||||||||||||||||||||
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Amendment 19 Proposal for a regulation Article 1 – paragraph 1 – point 2 Regulation (EC) No 1206/2001 Article 6 – paragraph 4 | |||||||||||||||||||||||||
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Amendment 20 Proposal for a regulation Article 1 – paragraph 1 – point 4 Regulation (EC) No 1206/2001 Article 17a – title | |||||||||||||||||||||||||
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Amendment 21 Proposal for a regulation Article 1 – paragraph 1 – point 4 Regulation (EC) No 1206/2001 Article 17a – paragraph 1 | |||||||||||||||||||||||||
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Amendment 22 Proposal for a regulation Article 1 – paragraph 1 – point 4 Regulation (EC) No 1206/2001 Article 17a – paragraph 1 a (new) | |||||||||||||||||||||||||
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Amendment 23 Proposal for a regulation Article 1 – paragraph 1 – point 4 Regulation (EC) No 1206/2001 Article 17a – paragraph 2 | |||||||||||||||||||||||||
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Amendment 24 Proposal for a regulation Article 1 – paragraph 1 – point 4 Regulation (EC) No 1206/2001 Article 17a – paragraph 2 a (new) | |||||||||||||||||||||||||
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Amendment 25 Proposal for a regulation Article 1 – paragraph 1 – point 4 Regulation (EC) No 1206/2001 Article 17a – paragraph 3 – introductory sentence | |||||||||||||||||||||||||
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Amendment 26 Proposal for a regulation Article 1 – paragraph 1 – point 4 Regulation (EC) No 1206/2001 Article 17a – paragraph 3 – point b | |||||||||||||||||||||||||
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Amendment 27 Proposal for a regulation Article 1 – paragraph 1 – point 4 Regulation (EC) No 1206/2001 Article 17a – paragraph 3 a (new) | |||||||||||||||||||||||||
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Amendment 28 Proposal for a regulation Article 1 – paragraph 1 – point 4 Regulation (EC) No 1206/2001 Article 17a – paragraph 3 b (new) | |||||||||||||||||||||||||
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Amendment 29 Proposal for a regulation Article 1 – paragraph 1 – point 5 Regulation (EC) No 1206/2001 Article 17b – title | |||||||||||||||||||||||||
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Amendment 30 Proposal for a regulation Article 1 – paragraph 1 – point 5 Regulation (EC) No 1206/2001 Article 17b – paragraph 1 | |||||||||||||||||||||||||
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Amendment 31 Proposal for a regulation Article 1 – paragraph 1 – point 6 Regulation (EC) No 1206/2001 Article 18a – paragraph 1 | |||||||||||||||||||||||||
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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) | |||||||||||||||||||||||||
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Amendment 33 Proposal for a regulation Article 1 – paragraph 1 – point 8 Regulation (EC) No 1206/2001 Article 20 – paragraph 2 | |||||||||||||||||||||||||
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Amendment 34 Proposal for a regulation Article 1 – paragraph 1 – point 8 Regulation (EC) No 1206/2001 Article 20 – paragraph 3 | |||||||||||||||||||||||||
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Amendment 35 Proposal for a regulation Article 1 – paragraph 1 – point 8 Regulation (EC) No 1206/2001 Article 20 – paragraph 6 | |||||||||||||||||||||||||
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Amendment 36 Proposal for a regulation Article 1 – paragraph 1 – point 9 Regulation (EC) No 1206/2001 Article 22a – paragraph 1 | |||||||||||||||||||||||||
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Amendment 37 Proposal for a regulation Article 1 – paragraph 1 – point 10 Regulation (EC) No 1206/2001 Article 23 – paragraph 1 | |||||||||||||||||||||||||
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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 |
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References |
COM(2018)0378 – C8-0242/2018 – 2018/0203(COD) |
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Date submitted to Parliament |
31.5.2018 |
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Committee responsible Date announced in plenary |
JURI 10.9.2018 |
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Rapporteurs Date appointed |
Emil Radev 24.9.2018 |
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Discussed in committee |
11.10.2018 |
20.11.2018 |
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Date adopted |
10.12.2018 |
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Result of final vote |
+: –: 0: |
18 0 0 |
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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 |
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Substitutes present for the final vote |
Sergio Gaetano Cofferati, Luis de Grandes Pascual, Tiemo Wölken, Kosma Złotowski |
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Date tabled |
19.12.2018 |
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FINAL VOTE BY ROLL CALL IN COMMITTEE RESPONSIBLE
18 |
+ |
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ALDE |
Jean-Marie Cavada, António Marinho e Pinto |
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ECR |
Kosma Złotowski |
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EFDD |
Joëlle Bergeron |
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GUE/NGL |
Kostas Chrysogonos |
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PPE |
Daniel Buda, Luis de Grandes Pascual, Pavel Svoboda, Axel Voss, Francis Zammit Dimech, Tadeusz Zwiefka |
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S&D |
Sergio Gaetano Cofferati, Mady Delvaux, Mary Honeyball, Sylvia-Yvonne Kaufmann, Evelyn Regner, Tiemo Wölken |
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VERTS/ALE |
Julia Reda |
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0 |
- |
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0 |
0 |
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Key to symbols:
+ : in favour
- : against
0 : abstention