ANNEX
Dieses Dokument ist Teil der Anfrage „Cooperation between the courts: taking of evidence in civil or commercial matters“
Diese Anfrage wurde als Teil der Kampagne „Black Box EU“ gestellt.
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)) Cell in green: The text can be deemed as already agreed Cell in yellow: The issue needs further discussion at technical level Cell in red: The issue needs further discussion in depth at the trilogue meetings Note: Differences between the EP's position and the Commission's proposal are highlighted in bold /italic . Deletions are marked with strikethrough. Differences between the Council's position and the Commission's proposal are highlighted in bold/underlined. Deletions are marked with strikethrough. 1
COMMISSION PROPOSAL EP TEXT COUNCIL TEXT CONSOLIDATED TEXT / COM(2018)0378 FINAL COMPROMISE Row PROPOSALS / COMMENTS 1 THE EUROPEAN THE EUROPEAN PARLIAMENT THE EUROPEAN PARLIAMENT AND THE AND THE COUNCIL OF THE PARLIAMENT AND THE COUNCIL OF THE EUROPEAN EUROPEAN UNION, COUNCIL OF THE EUROPEAN UNION, UNION, 2 Having regard to the Treaty on Having regard to the Treaty on the Having regard to the Treaty on the the Functioning of the European Functioning of the European Union, Functioning of the European Union, and in particular Article and in particular Article 81 thereof, Union, and in particular Article 81 81 thereof, thereof, 3 Having regard to the proposal Having regard to the proposal from Having regard to the proposal from the European Commission, the European Commission, from the European Commission, 4 After transmission of the draft After transmission of the draft After transmission of the draft legislative act to the national legislative act to the national legislative act to the national parliaments, parliaments, parliaments, 5 Having regard to the opinion of Having regard to the opinion of the Having regard to the opinion of the European Economic and European Economic and Social the European Economic and 1 1 1 Social Committee , Committee , Social Committee , 6 Acting in accordance with the Acting in accordance with the Acting in accordance with the 2 ordinary legislative procedure, ordinary legislative procedure , ordinary legislative procedure, 7 Whereas: Whereas: Whereas: 8 (1) In the interests of the proper (1) In the interests of the proper (1) In the interests of the proper functioning of the internal market, functioning of the internal market, functioning of the internal market 1 OJ C , , p. . 2 Position of the European Parliament of 13 February 2019. 2
COMMISSION PROPOSAL EP TEXT COUNCIL TEXT CONSOLIDATED TEXT / COM(2018)0378 FINAL COMPROMISE Row PROPOSALS / COMMENTS it is necessary to further improve it is necessary to further improve and the development of a European and expedite cooperation between and expedite cooperation between area of civil justice governed by the courts in the taking of evidence. courts in the taking of evidence. 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. 9 (2) Council Regulation (EC) No (2) Council Regulation (EC) No (2) Council Regulation (EC) No 2 2 1206/2001 lays down rules on 2 1206/2001 lays down rules on 1206/2001 lays down rules on cooperation between the courts of cooperation between the courts of cooperation between the courts of the Member States in the taking the Member States in the taking of the Member States in the taking of of evidence in civil or commercial evidence in civil or commercial evidence in civil or commercial matters. matters. matters. 10 (2a) For the purposes of this (2a) For the purposes of this Regulation, the term ‘court’ should Regulation, the term 'court' be given a broad meaning so as to should mean also other cover not only courts in the strict authorities exercising judicial sense of the word, that exercise functions or acting pursuant to a judicial functions, but also other delegation of power by a judicial bodies or authorities which are authority or acting under the 2 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 (OJ L 174, 27.6.2001, p. 1). 3 Council Regulation (EU) No 2019/1111 on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction (OJ L 178, 2.7.2019, p. 1). 3
COMMISSION PROPOSAL EP TEXT COUNCIL TEXT CONSOLIDATED TEXT / COM(2018)0378 FINAL COMPROMISE Row PROPOSALS / COMMENTS competent under national law to control of a judicial authority take evidence in accordance with which are competent to take this Regulation, such as evidence according to national enforcement authorities or notaries law for the purposes of judicial in certain Member States and in proceedings in civil and specific situations. commercial matters, in particular authorities qualified as court under other Union law instruments, such as Council 3 Regulation (EU) No 2019/1111 , Regulation (EU) No 1215/2012 of the European Parliament and 4 of the Council and of the Council and Regulation (EU) No 650/2012 of the European 5 Parliament and of the Council . 11 (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 4 Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ L 351, 20.12.2012, p. 1). 5 Regulation (EU) No 650/2012 of the European Parliament and of the Council on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession (OJ L 201, 27.7.2012, p. 107). 4
COMMISSION PROPOSAL EP TEXT COUNCIL TEXT CONSOLIDATED TEXT / COM(2018)0378 FINAL COMPROMISE Row PROPOSALS / COMMENTS protection of confidential information. In this context, it is important to encourage the use of modern technology. 12 (3) In order to ensure speedy (3) In order to effectively ensure (3) In order to ensure speedy transmission of requests and direct and speedy transmission of transmission of requests and communications, all appropriate requests and communications, all communications, all appropriate means of modern communication appropriate means of modern means of modern technology should be used. communication technology should communication technology Therefore, as a rule, all be used, and in that regard the should be used. Therefore, as a communication and exchanges of constant development of such rule, all communication and documents should be carried out technology should be taken into exchanges of documents should through a decentralised IT account. Therefore, as a rule, all be carried out through a secure system composed of national IT communication and exchanges of decentralised IT system systems. documents should be carried out composed of national IT through a decentralised IT system systems. For that purpose, composed of national IT systems. such a decentralised IT system for data exchanges in accordance with this Regulation should be established. The decentralised nature of this system means that it will exclusively enable data exchanges from one Member State to another, without involvement of any of the Union institutions in those 5
COMMISSION PROPOSAL EP TEXT COUNCIL TEXT CONSOLIDATED TEXT / COM(2018)0378 FINAL COMPROMISE Row PROPOSALS / COMMENTS exchanges. 13 (3a) The competent authority (3a) The decentralised IT system should be based on the e-CODEX or authorities under the law of system and should be managed by the Member State should be eu-LISA. Adequate resources responsible as controllers for should be made available to eu- the processing of personal data LISA so that such a system can that they carry out under this be introduced and kept operational, Regulation for the transmission as well as to provide technical of requests and other support in the event of problems in communications between the operation of the system. The Member States. The Commission should submit, as Commission, or any other soon as possible, and in any event Union institution, is not before the end of 2019, a proposal involved in any personal data for a Regulation on cross-border processing carried out within communication in judicial the decentralised IT system proceedings (e-CODEX). established by this Regulation. 14 (3b) The Commission should be responsible for the creation, maintenance and future development of a reference implementation software which Member States may choose to apply instead of a national IT system. The reference implementation software 6
COMMISSION PROPOSAL EP TEXT COUNCIL TEXT CONSOLIDATED TEXT / COM(2018)0378 FINAL COMPROMISE Row PROPOSALS / COMMENTS should be designed, developed and maintained in compliance with the data protection requirements and principles laid down in Regulation (EU) 6 2018/1725 and Regulation 7 (EU) 2016/679 , in particular the principles of data protection by design and by default. It should also implement appropriate technical measures and enable the necessary organisational measures in order to ensure a level of security and interoperability which is appropriate for the exchanges of information in the area of taking of evidence. 15 (3c) Transmission through the 6 Regulation (EU) 2018/1725 of the European Parliament and of the Council of 23 October 2018 on the protection of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data, and repealing Regulation (EC) No 45/2001 and Decision No 1247/2002/EC (OJ L 295, 21.11.2018, p. 39). 7 Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (OJ L 119, 4.5.2016, p. 1). 7
COMMISSION PROPOSAL EP TEXT COUNCIL TEXT CONSOLIDATED TEXT / COM(2018)0378 FINAL COMPROMISE Row PROPOSALS / COMMENTS decentralised IT system could be impossible due to a disruption of the system or the nature of evidence, for example when transmitting DNA or blood samples. Other means of communication could be more appropriate also in exceptional circumstances, which could include a situation where converting voluminous documentation to electronic form would impose a disproportionate administrative burden on the competent authorities or where the original document in paper format is needed to assess its authenticity. When the decentralised IT system would not be used, transmission should be carried out by the most appropriate means. This would mean, inter alia, that transmission should be performed as swiftly as possible and in a secure manner by 8
COMMISSION PROPOSAL EP TEXT COUNCIL TEXT CONSOLIDATED TEXT / COM(2018)0378 FINAL COMPROMISE Row PROPOSALS / COMMENTS other secure electronic means or by post. 16 (4) In order to ensure mutual (4) In order to ensure mutual (4) In order to ensure mutual recognition of digital evidence recognition of digital evidence such recognition of enhance cross- such evidence taken in a Member evidence taken in a Member State in border electronic transmissions State in accordance with its law accordance with its law should not digital evidence such evidence should not be denied recognition be denied recognition as evidence in taken in a Member State in as evidence in other Member other Member States only because of accordance with its law the States only because of its digital its digital nature. That principle documents transmitted nature. should be without prejudice to through the decentralised IT determining, in accordance with system should not be denied national law, the level of quality legal effect and admissibility as and the value of evidence, evidence in the proceedings regardless of its digital or non- solely on the grounds that they digital nature. are in an electronic form recognition as evidence in other Member States only because of its digital nature. However, this principle should not otherwise affect the competence of the court seised with the proceedings to assess legal effects of such documents or their admissibility as evidence. It should also be without prejudice to requirements of national law on conversion of 9
COMMISSION PROPOSAL EP TEXT COUNCIL TEXT CONSOLIDATED TEXT / COM(2018)0378 FINAL COMPROMISE Row PROPOSALS / COMMENTS documents. 17 (5) Regulation (EC) No (5) Regulation (EC) No 1206/2001 (5) Regulation (EC) No 1206/2001 should be without should be without prejudice to the 1206/2001 should be without prejudice to the possibility for possibility for authorities to prejudice to the possibility for authorities to exchange exchange information under systems authorities to exchange information under systems established by other Union information under systems established by other Union instruments, such as Council established by other Union 3 instruments, such as Council Regulation (EC) No 2201/2003 or instruments, such as Council 3 3 Regulation (EC) No 2201/2003 Council Regulation (EC) No Regulation (EC) No 2201/2003 4 or Council Regulation (EC) No 4/2009 , even where that information (EU) No 2019/1111 or Council 4 48 4/2009 , even where that has evidentiary value, thus leaving Regulation (EC) No 4/2009 , information has evidentiary value, the choice of the most suitable even where that information has thus leaving the choice of the method to the requesting authority. evidentiary value, thus leaving the most suitable method to the choice of the most suitable method requesting authority. to the requesting authority. 18 (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 3 Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000 (OJ L 338, 23.12.2003, p. 1). 4 Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations (OJ L 7, 10.1.2009, p. 1). 10
