Problems of enforcement of european law - Third session
Cross-Border Evidence and Witness Problems (Regulation 1206/2001 of 28 May 2001)

 

 

Moderator : Justice Frantisek Faldyna, Chairman of the Commercial Section, Supreme Court of the Czech Republic.

The keynote speaker was Justice Jean-Paul Béraudo, Cour de cassation, Paris. He began by describing the scope of “civil and commercial matters” under Regulation 1206/2001. Civil matters included a great part of public law but excluded administrative law except for contracts with exorbitant clauses. Commercial matters included bankruptcies to the extent that the Regulation did not contradict Regulation 1346/2000 concerning insolvency procedures. Under the Brussels Convention, social security was excluded from civil matters however the ECJ had carved out an exception. As regards the geographical scope of the Regulation, it covered the Member States (except Denmark) and extended only to those parts of the Member States which belonged to the EU (e.g. Tahiti, while belonging to France, was excluded).

The Regulation’s objective was to deal with “ investigatory acts,” as distinguished from the language of the Hague Conventions of 1954 and 1970 which contemplated “investigatory acts and other judicial acts.” Investigatory acts were different from enforcement acts and transmission acts. Investigatory acts included, among other things, (i) the hearing of witnesses ; (ii) the examination of evidence ; and (iii) the appointment of experts. “Other judicial acts” included obligatory procedural requirements, such as a hearing conducted during a divorce proceeding where the hearing was part of the required conciliatory process. It was hard to say whether the Regulation would be interpreted as broadly as the Hague Convention and it remained difficult for judges, especially in fringe cases, to decipher the Regulation and the Convention. Thus, it was important for the ECJ to provide a uniform interpretation.

The main purpose of the Regulation was to facilitate the direct communication between courts. The fact that the requesting court could carry out investigations greatly facilitated the proceedings, especially when the court could not delegate certain responsibilities, such as procedural measures. The drawback was that the proceeding had to be subordinated to a request for authorisation and the requested court had thirty days to grant or deny the request. The requested court could deny the request if (i) the request was beyond the scope of the Regulation ; (ii) the request was incomplete ; or (iii) the request was contrary to the fundamental principles of the requested country (this vague principle needed to be interpreted by the ECJ). A second drawback was that the requested court also had to give its consent for a representative of the requesting court to attend the proceeding, even if the representative did not participate.

The forms, which were shorter than the Regulation, had simplified matters but the Regulation prevailed over the forms. As for language issues, English and French were no longer acceptable languages in all the Member States. However, Regulation 1 of 1958 stated that all official languages are equal.

The Hon. Ms. Justice Finlay Geoghegan, High Court, Dublin, was the first intervenor. She stated that this Regulation was a positive development which would facilitate the proper conduct of the proceedings. Since January 1, 2004, there had been five requests in Ireland, three of which had been rejected because they did not prima facia comply with the Regulation, one of which was resolved before the court had to decide the case and the last one of which was currently pending. She stressed the need for judges to understand the relevant law and procedural rules in the Member States to which they might address a request and noted there was a ping pong effect as to which rules applied at different stages of the case.

The second intervenor, Judge Martine Regout, Court of Appeals, Brussels, noted that, in Belgium, requests should be addressed to the territorially competent courts of first instance. Since last August, there had only been six such requests all of which had yet to be adjudicated upon. While the judge in Belgium handled the investigation, asked the witness questions and dictated a summary of the responses to the clerk, a request from a common law state to apply common law procedures should not pose a problem (e.g. a verbatim recording was provided for under the Belgian code).

The final intervenor was Luis Rodriguez Vega, Magistrate, Commercial Court, Barcelona. He explained how a court of one Member State might obtain evidence via video conference in another Member State. Video conferencing permitted the requesting court to intervene and facilitated the participation of the lawyers. Evidence could be obtained indirectly (through the court of State B) or directly (by the court of State A with the authorisation of State B). He explained how evidence could be gathered under Spanish law using both systems and how video conferencing could be employed, noting that the direct system of obtaining evidence was the most efficient method.

Mr. Justice Colman, High Court of Justice, London, raised several questions concerning problems stemming from procedural differences in common law and civil law countries. Justice Jean-Paul Béraudo responded to Judge Martine Regout’s comments.