New European regulation on evidence taking in civil and commercial matters comes into force

This regulation is in line with the contents of our previous newsletter and is included in the same European package of measures aiming to modernise EU cooperation.

The main purpose of the regulation is to improve judicial cooperation in the taking of evidence in cross-border proceedings at EU level, in particular, by taking advantage of technical progress and the benefits of digitisation.

Direct taking of evidence by videoconference

Article 20 of the regulation introduces one of the main amendments regarding the use of new technologies.

Where evidence is to be taken by examining a person present in another Member State, the requesting court may take that evidence directly using videoconferencing or other distance communications technology, provided that such technology is available and its use is considered appropriate.

This is to avoid the unnecessary transfer of the person to be examined to the Member State where the proceedings are being conducted.

In any event, in order for a court to request the examination of a person in another Member State, it must submit a request to the competent authority of that Member State using the forms expressly provided for in the regulation.

Diplomatic agents or consular officers

According to Article 21 of the regulation, Member States may provide in their national law for their courts to be able to request their diplomatic agents or consular officers in the territory of another Member State, and within the area in which they are accredited, to take evidence at the premises of the diplomatic mission or consulate (except in exceptional circumstances).

In that case, they can take evidence without needing to make a prior request, by hearing, on a voluntary basis and without the use of coercive measures, nationals of the Member State which they represent.

Osborne Clarke comment

The pandemic caused by Covid-19 has brought the need for a modern and digitised judicial system to the fore. This regulation responds to this imperative by incorporating and welcoming new technologies for the taking of evidence. This will undoubtedly help to build a digitised, agile and secure European judicial area.