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. TEXT 19 JUNE 2020 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 THE EUROPEAN PARLIAMENT AND THE AND THE COUNCIL OF THE PARLIAMENT AND THE PARLIAMENT AND THE COUNCIL OF THE EUROPEAN EUROPEAN UNION, COUNCIL OF THE EUROPEAN COUNCIL OF THE UNION, UNION, EUROPEAN UNION, 2 Having regard to the Treaty on Having regard to the Treaty on the Having regard to the Treaty on the Having regard to the Treaty the Functioning of the European Functioning of the European Union, Functioning of the European on the Functioning of the Union, and in particular Article and in particular Article 81 thereof, Union, and in particular Article 81 European Union, and in 81 thereof, thereof, particular Article 81 thereof, 3 Having regard to the Having regard to the proposal Having regard to the proposal from Having regard to the proposal proposal from the European from the European Commission, the European Commission, from the European Commission, Commission, 4 After transmission of the After transmission of the draft After transmission of the draft After transmission of the draft draft legislative act to the legislative act to the national legislative act to the national legislative act to the national national parliaments, parliaments, parliaments, parliaments, 5 Having regard to the opinion of Having regard to the opinion of the Having regard to the opinion of Having regard to the opinion the European Economic and European Economic and Social the European Economic and of the European Economic 1 1 1 1 Social Committee , Committee , Social Committee , and Social Committee , 6 Acting in accordance with the Acting in accordance with the Acting in accordance with the Acting in accordance with 2 ordinary legislative procedure, ordinary legislative procedure , ordinary legislative procedure, the ordinary legislative procedure, 7 Whereas: Whereas: Whereas: Whereas: 8 (1) In the interests of the proper (1) In the interests of the (1) In the interests of the proper (1) In the interests of the proper 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 functioning of the internal market, proper functioning of the functioning of the internal market, functioning of the internal market it is necessary to further improve internal market, and the it is necessary to further improve and the development of a European and expedite cooperation between development of a European and expedite cooperation between area of civil justice governed by the courts in the taking of evidence. area of civil justice courts in the taking of evidence. principle of mutual trust and mutual recognition of judgments, it governed by the principle of is necessary to further improve and mutual trust and mutual expedite cooperation between courts recognition of judgments, it is necessary to further in the Member States in relation to improve and expedite the taking of evidence. cooperation between courts in the Member States in relation to the taking of evidence. 9 (2) Council Regulation (EC) No (2) Council Regulation (2) Council Regulation (EC) No (2) Council Regulation (EC) No 2 2 2 1206/2001 lays down rules on 2 1206/2001 lays down rules on 1206/2001 lays down rules on (EC) No 1206/2001 lays cooperation between the courts of cooperation between the courts of cooperation between the courts of down rules on cooperation the Member States in the taking the Member States in the taking of the Member States in the taking of between the courts of the of evidence in civil or commercial evidence in civil or commercial evidence in civil or commercial Member States in the taking matters. matters. matters. of evidence in civil or commercial matters. 10 (2a) For the purposes of (2a) For the purposes of this (2a) For the purposes of this this Regulation, the term Regulation, the term ‘court’ should Regulation, the term 'court' 'court' should mean also be given a broad meaning so as to should mean also other 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 other authorities cover not only courts in the strict authorities exercising judicial exercising judicial sense of the word, that exercise functions or acting pursuant to a functions or acting judicial functions, but also other delegation of power by a judicial pursuant to a delegation of bodies or authorities which are authority or acting under the power by a judicial competent under national law to control of a judicial authority authority or acting under take evidence in accordance with which are competent to take the control of a judicial this Regulation, such as evidence according to national authority which are enforcement authorities or notaries law for the purposes of judicial competent to take evidence in certain Member States and in proceedings in civil and according to national law specific situations. commercial matters, in for the purposes of judicial particular authorities qualified proceedings in civil and as court under other Union law commercial matters, in instruments, such as Council 3 particular authorities Regulation (EU) No 2019/1111 , qualified as court under Regulation (EU) No 1215/2012 other Union law of the European Parliament and 4 instruments, such as of the Council and of the Council Regulation (EU) Council and Regulation (EU) No 3 No 2019/1111 , Regulation 650/2012 of the European 5 (EU) No 1215/2012 of the Parliament and of the Council . European Parliament and 4 of the Council and of the 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 Council and Regulation (EU) No 650/2012 of the European Parliament and 5 of the Council . 11 (2b) It is essential that (2b) It is essential that effective effective means of means of obtaining, preserving and obtaining, preserving and presenting evidence are available, presenting evidence are and that due regard is given to the available, and that due rights of defence and the need for regard is given to the rights protection of confidential of defence and the need for information. In this context, it is protection of confidential important to encourage the use of information. In this modern technology. context, it is important to encourage the use of modern technology. (3) In order to ensure speedy 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 transmission of requests and communications, all appropriate requests and communications, all communications, all appropriate communications, all means of modern communication appropriate means of modern means of modern appropriate means of technology should be used. communication technology should communication technology modern communication 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). 5
COMMISSION PROPOSAL EP TEXT COUNCIL TEXT CONSOLIDATED TEXT / COM(2018)0378 FINAL COMPROMISE Row PROPOSALS / COMMENTS technology should be used. 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 Therefore, as a rule, all documents should be carried out technology should be taken into exchanges of documents should communication and through a decentralised IT account. Therefore, as a rule, all be carried out through a secure exchanges of documents system composed of national IT communication and exchanges of decentralised IT system should be carried out systems. documents should be carried out composed of national IT through a secure and through a decentralised IT system systems. For that purpose, reliable decentralised IT composed of national IT systems. such a decentralised IT system system composed of national for data exchanges in IT systems and accordance with this interconnected by an Regulation should be interoperable technical established. The decentralised solution, for example, and nature of this system means without prejudice to further that it will exclusively enable technological evolution, on data exchanges from one e-CODEX. For that purpose, Member State to another, such a decentralised IT without involvement of any of system for data exchanges in the Union institutions in those accordance with this exchanges. 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 6
COMMISSION PROPOSAL EP TEXT COUNCIL TEXT CONSOLIDATED TEXT / COM(2018)0378 FINAL COMPROMISE Row PROPOSALS / COMMENTS those exchanges. 13a (3a) For the components of (3a) The decentralised IT system the decentralised IT should be based on the e-CODEX system which are under system and should be managed by the responsibility of the eu-LISA. Adequate resources Union, the managing entity should be made available to eu- should have sufficient LISA so that such a system can resources in order to allow be introduced and kept operational, the proper functioning of as well as to provide technical the system". 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). 13b (3a) The competent authority (3b) T h e c o m pe te n t or authorities under the law of authori t y or a u tho r iti e s the Member State should be und e r the law o f the responsible as controllers for M e m b e r S ta t e s h o u ld b e the processing of personal data re s p o n sib le as c o n tr ol l er s f or that they carry out under this the pro c e ss in g of p er so n al Regulation for the transmission d ata t h at t h e y c a rr y o u t of requests and other u nd e r this R e g u lation f or the communications between tr a n s m is s ion of re qu e sts and other communications 7
COMMISSION PROPOSAL EP TEXT COUNCIL TEXT CONSOLIDATED TEXT / COM(2018)0378 FINAL COMPROMISE Row PROPOSALS / COMMENTS Member States. The between Member States. Commission, or any other Union institution, is not involved in any personal data processing carried out within the decentralised IT system established by this Regulation. 14 (3b) The Commission should (3c) T h e Co m m is s ion be responsible for the creation, s h o u ld b e re s p o n si b le f or the maintenance and future c re ation, m ai n t en a n c e a n d development of a reference future d e v e lo p me n t of a implementation software which re f er en c e i m p le me n ta tion Member States may choose to so f tw a r e w h ich M e m b e r apply instead of a national IT St at e s m ay c h oose to ap p ly system. The reference in st e ad o f a n a tional IT implementation software syst e m . T h e r ef ere n c e should be designed, developed i m p l e m e n t a tion so f t w a r e and maintained in compliance s h o u ld b e d e sig n e d , with the data protection d e v e lo p e d a n d m ai n tain e d in requirements and principles c o m p l ia n c e w ith th e d ata laid down in Regulation (EU) pro tec tion re qu ir e m e n ts and principles laid down in 6 2018/1725 and Regulation Regulation (EU) 2018/1725 6 7 (EU) 2016/679 , in particular and Regulation (EU) 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). 8
COMMISSION PROPOSAL EP TEXT COUNCIL TEXT CONSOLIDATED TEXT / COM(2018)0378 FINAL COMPROMISE Row PROPOSALS / COMMENTS 7 the principles of data 2016/679 , in particular the protection by design and by principles of data protection default. It should also by design and by default. It implement appropriate should also implement technical measures and enable appropriate technical the necessary organisational measures and enable the measures in order to ensure a necessary organisational level of security and measures in order to ensure interoperability which is a level of security and appropriate for the exchanges interoperability which is of information in the area of appropriate for the taking of evidence. exchanges of information in the area of taking of evidence. 14a (3d) Where evidence is to be taken by hearing a person via videoconference or other distance communication, the requesting court should upon 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). 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). 9
COMMISSION PROPOSAL EP TEXT COUNCIL TEXT CONSOLIDATED TEXT / COM(2018)0378 FINAL COMPROMISE Row PROPOSALS / COMMENTS its request be provided with assistance in finding an interpreter, including, where specifically requested, in finding a certified interpreter. 15 (3e) Transmission through (3c) Transmission through the the decentralised IT decentralised IT system could system could be impossible be impossible due to a due to a disruption of the disruption of the system or the system or the nature of nature of evidence, for example evidence, for example when transmitting DNA or when transmitting DNA or blood samples. Other means of blood samples. Other communication could be more means of communication appropriate also in exceptional could be more appropriate circumstances, which could also in exceptional include a situation where circumstances, which converting voluminous could include a situation documentation to electronic where converting form would impose a voluminous documentation disproportionate to electronic form would administrative burden on the impose a disproportionate competent authorities or where administrative burden on the original document in paper the competent authorities format is needed to assess its or where the original authenticity. When the document in paper format decentralised IT system would is needed to assess its 10
