wk06287_en20
Dieses Dokument ist Teil der Anfrage „Cooperation between the courts: taking of evidence in civil or commercial matters“
Ref. Ares(2020)6302646 - 03/11/2020 Brussels, 15 June 2020 Interinstitutional files: 2018/0203(COD) WK 6287/2020 INIT LIMITE JUSTCIV EJUSTICE COMER CODEC WORKING PAPER This is a paper intended for a specific community of recipients. Handling and further distribution are under the sole responsibility of community members. WORKING DOCUMENT From: Presidency To: Delegations Subject: 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 - Preparation of the seventh technical meeting and the second trilogue with the European Parliament Delegations will find attached the 4-column table following the fifth and sixth technical meeting with the European Parliament on the above proposal and in preparation of the seventh technical meeting as well as the second trilogue with the European Parliament. WK 6287/2020 INIT JAI.2 CHS/mg LIMITE EN
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 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 ordinary legislative procedure, ordinary legislative procedure ,2 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 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 and the development of a European it is necessary to further improve and expedite cooperation between area of civil justice governed by the and expedite cooperation between courts in the taking of evidence. principle of mutual trust and courts in the taking of evidence. 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 (2) Council Regulation (EC) No (2) Council Regulation (EC) No 2 2 2 2 1206/2001 lays down rules on (EC) No 1206/2001 lays 1206/2001 lays down rules on 1206/2001 lays down rules on cooperation between the courts of down rules on cooperation cooperation between the courts of cooperation between the courts of the Member States in the taking of between the courts of the the Member States in the taking the Member States in the taking of evidence in civil or commercial Member States in the taking of evidence in civil or commercial evidence in civil or commercial matters. of evidence in civil or matters. matters. commercial matters. 10 Linked to agreement on (2a) For the purposes of this (2a) For the purposes of this row 52. Regulation, the term ‘court’ should Regulation, the term 'court' be given a broad meaning so as to should mean also other Agreement is linked to row cover not only courts in the strict authorities exercising judicial 109, on which EP thought sense of the word, that exercise functions or acting pursuant to a we had already agreed to judicial functions, but also other delegation of power by a judicial include “judicial bodies or authorities which are authority or acting under the authorities”. competent under national law to control of a judicial authority Same counts for row 36. 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 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 Regulation (EU) No 2019/1111 , 3 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 Parliament and of the Council .5 11 (2b) It is essential that effective Presidency suggests to accept this recital. means of obtaining, preserving and presenting evidence are available, and that due regard is given to the rights of defence and the need for protection of confidential information. In this context, it is 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 important to encourage the use of modern technology. (3) “In order to ensure 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 speedy transmission of communications, all appropriate requests and communications, all communications, all appropriate requests and means of modern communication appropriate means of modern means of modern communications, all technology should be used. communication technology should communication technology appropriate means of Therefore, as a rule, all be used, and in that regard the should be used. Therefore, as a modern communication communication and exchanges of constant development of such rule, all communication and technology should be used. documents should be carried out technology should be taken into exchanges of documents should Therefore, as a rule, all through a decentralised IT account. Therefore, as a rule, all be carried out through a secure communication and system composed of national IT communication and exchanges of decentralised IT system exchanges of documents systems. documents should be carried out composed of national IT should be carried out through a decentralised IT system systems. For that purpose, through a secure and composed of national IT systems. such a decentralised IT system reliable decentralised IT for data exchanges in system composed of national accordance with this IT systems and Regulation should be interconnected by an established. The decentralised interoperable technical nature of this system means solution, for example, and that it will exclusively enable without prejudice to further data exchanges from one technological evolution, on Member State to another, e-CODEX. For that purpose, without involvement of any of the Union institutions in those such a decentralised IT exchanges. system for data exchanges in accordance with this Regulation should be established. The 5
COMMISSION PROPOSAL EP TEXT COUNCIL TEXT CONSOLIDATED TEXT / COM(2018)0378 FINAL COMPROMISE Row PROPOSALS / COMMENTS 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 exchanges.' 13a EP wants to keep the (3a) The decentralised IT system essence of the first should be based on the e-CODEX sentence in its recital 3a, system and should be managed by namely, that the eu-LISA. Adequate resources decentralised IT system should be made available to eu- should be managed by eu- LISA so that such a system can LISA. be introduced and kept operational, as well as to provide technical 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 EP suggests to delete the (3a) The competent authority last sentence of the general or authorities under the law of approach. the Member State should be responsible as controllers for 6
COMMISSION PROPOSAL EP TEXT COUNCIL TEXT CONSOLIDATED TEXT / COM(2018)0378 FINAL COMPROMISE Row PROPOSALS / COMMENTS the processing of personal data that they carry out under this Regulation for the transmission of requests and other communications between Member States. The 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 (3b) The Commission should should be responsible for the be responsible for the creation, creation, maintenance and maintenance and future future development of a development of a reference reference implementation implementation software which software which Member Member States may choose to States may choose to apply apply instead of a national IT instead of a national IT system. The reference system. The reference implementation software implementation software should be designed, developed should be designed, and maintained in compliance developed and maintained in with the data protection compliance with the data requirements and principles protection requirements and laid down in Regulation (EU) principles laid down in 7
COMMISSION PROPOSAL EP TEXT COUNCIL TEXT CONSOLIDATED TEXT / COM(2018)0378 FINAL COMPROMISE Row PROPOSALS / COMMENTS 6 6 2018/1725 and Regulation Regulation (EU) 2018/1725 7 (EU) 2016/679 , in particular and Regulation (EU) 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. 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). 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). 8
COMMISSION PROPOSAL EP TEXT COUNCIL TEXT CONSOLIDATED TEXT / COM(2018)0378 FINAL COMPROMISE Row PROPOSALS / COMMENTS 15 EP can accept this Council (3c) Transmission through the recital if the term “post” in decentralised IT system could the last sentence is be impossible due to a replaced by “postal disruption of the system or the service”. 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 9
