August 16th, 2022
As some of you may already be aware, two new regulations have been in force since 1 July 2022, namely Regulation (EU) No 2020/1783 (on the taking of evidence) and Regulation (EU) No 2020/1784 (on the service of documents). In the following we would like to present the regulations.
Regulation (EU) No 2020/1783 (hereinafter: Taking of Evidence Regulation) aims to improve, simplify and accelerate cooperation between the courts of the Member States (hereinafter: MS) for the purpose of taking evidence. Regulation (EU) No 2020/1784 (hereinafter: Service Regulation) in turn serves to improve and accelerate the cross-border transmission of judicial and extrajudicial documents in civil and commercial matters. The Regulations replace the previously valid Regulations (EC) No 1206/2001 and No 1393/2007.
1. Taking of evidence Regulation
The Regulation provides for three alternatives, either the trial court (hereinafter: national court) requests the competent court of another MS (hereinafter: foreign court) to take evidence, the taking of evidence is then carried out by the foreign court, or the national court requests to be allowed to take evidence directly in another MS itself. Finally, there is the possibility of taking evidence by staff of diplomatic or consular missions.
The Taking of Evidence Regulation stipulates the use of various forms. Requests must generally be made in the official language of the MS of the foreign court. In some cases, the MS have also allowed other languages. Documents which, from the point of view of the national court, are necessary to execute the request must also be translated into the language in which the request is written. Requests are to be transmitted via “a secure and decentralised IT system”, which, however, will only be available from 1 May 2025! However, other means of communication may also be used, although the Taking of Evidence Regulation does not give any examples.
a) Taking of evidence by the foreign court
The foreign court will execute the request in accordance with its national law. However, the national court may request that the request be executed in accordance with a special form provided for by its national law. In such a case, the foreign court shall execute the request in accordance with the special procedure, unless this is incompatible with its national law or impossible because of significant factual difficulties. The national court may also request that the taking of evidence be conducted using special communication technology (in particular video or teleconferencing).
Parties and representatives have the right to be present at the taking of evidence if the law of the national court so provides. The conditions of participation are determined by the foreign court. It is also possible for the foreign court to invite the parties/representatives to attend or participate in the taking of evidence on its own initiative.
b) Direct taking of evidence by the national court
The direct taking of evidence is only admissible if it can be carried out voluntarily and without the use of coercive measures. The request may also be refused if, inter alia, the direct taking of evidence is contrary to fundamental principles of law of the MS in which evidence is to be taken.
The taking of evidence shall be conducted in accordance with the law of the MS of the national court.
The hearing of persons residing in another MS shall be conducted by videoconference or other means of distance communication, if so requested, provided that the national court has such technology at its disposal and considers it appropriate to use it.
2. Service Regulation
The Service Regulation applies to the cross-border service of both judicial and extrajudicial documents in civil and commercial matters. “Cross-border service” means service from one MS to another, so the Service Regulation does not apply to third countries. The Service Regulation also does not apply if the address of the addressee is unknown. Furthermore, the Regulation does not apply to the service of a document in the MS where the court proceedings are pending to an authorised representative of the person to be served, regardless of where the person is domiciled.
The transmission will take place via the so-called “transmitting and receiving agencies”. Communication is also to take place via the decentralised IT system, which does not yet exist (see above).
The document to be transmitted must be accompanied by a request (form A). The form must be completed in the official language of the receiving MS (if there are several official languages, in the official language of the place of service) or in the other language permitted by the MS. The document itself must also be translated into a language that the addressee understands or into the official language of the MS (if there are several official languages, into the official language of the place of service). If there is no translation or if no translation is enclosed, the addressee may refuse to accept the document! However, the service can be cured. No certification or other formalities are required.
The application and the document are handed over to the national transmitting agency for service. Following transmission to the receiving agency, service is effected/initiated by the latter either in accordance with the law of the receiving MS or in a special procedure requested by the transmitting agency, within one month at the latest.
The date of service is generally the date on which the document was served according to the law of the receiving MS.
In addition to service through the transmitting/receiving agency, documents may also be served through diplomatic or consular channels, by diplomatic or consular agents, by postal services, electronically or directly.
Electronic service shall be effected in accordance with the rules of the MS in which the court proceedings are pending that apply to domestic service of documents. It is a condition that the documents are either sent and received by means of a qualified service within the meaning of Regulation (EU) No 910/2014 and that the addressee has expressly consented in advance to the use of electronic means for service of documents in judicial proceedings or that the addressee has given his or her prior express consent to the court, the authority dealing with the proceedings or the party responsible for service of documents to use e-mails to a specified e-mail address for the service of documents in the proceedings concerned and has acknowledged the service with an acknowledgement of receipt which includes the date of receipt. MS may lay down additional conditions under which electronic service is allowed or exclude electronic service.
Finally, the Service Regulation also contains rules on how to proceed in case a document instituting proceedings or an equivalent document had to be transmitted according to the Service Regulation and the defendant did not appear.
Both regulations are intended to improve and accelerate the previous procedure. To what extent this has actually been achieved remains to be seen. In particular, the many different forms and the fact that the “secure and decentralised IT system” intended for transmission is not yet available could deter courts from applying the regulations. It will be exciting to see what the practical implementation will ultimately look like and whether the hoped-for improvement and acceleration will actually occur. Especially since some of the options described were already available under the predecessor regulations valid until 30 June 2022. A real innovation is, among other things, the introduction of the “secure and decentralised IT system” as well as the possibility of electronic service of documents.
Should you have any question or comments in this respect or require any assistance, please contact us any time.
Regulation (EU) No. 2020/1783
Regulation (EU) No. 2020/1784