Documents considered by the Committee on 11 July 2018 Contents

8Taking of evidence and service of documents in civil or commercial proceedings

Committee’s assessment

Legally and politically important

Committee’s decision

Not cleared from scrutiny; further information requested; drawn to the attention of the Justice Committee and the Joint Committee on Human Rights

Document details

(a) Proposed Regulation amending 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 and commercial matters; (b) Proposed Regulation amending Regulation (EC) No 1393/2007 on the service in the Member States of Judicial and Extrajudicial documents in civil or commercial matters

Legal base

Article 81TFEU; ordinary legislative procedure; QMV


Ministry of Justice

Document Numbers

(a) (39870), 9620/18 + ADDS 1–3, COM (18) 378; (b) (39869), 9622/18 + ADDS 1–3, COM (18) 379

Summary and Committee’s conclusions

8.1These two proposals would amend the existing Regulations on taking evidence (Regulation (EC) No 1206/2001) and on service of documents (Regulation (EC) No 1393/2007). The UK participates in both Regulations.55 Both were modelled on Hague Conventions relating to civil and commercial proceedings: the 1970 Convention on the Taking of Evidence and the 1965 Convention on Service Abroad of Judicial and Extrajudicial documents. It is a common aim of both new EU proposals to incorporate modern communications technology, by making it mandatory to transmit all documents between Member States through a decentralised IT system composed of national IT systems. The Commission considers that this would improve the speed, security and reliability of processing requests.

8.2The Government considers it “highly unlikely” that the proposals will be adopted before the UK leaves the EU on 29 March 2019 but possible that they might apply towards the end of the transition/implementation period (see the Explanatory Memoranda referred to in paragraphs 8.4 and 8.7). Negotiations on both proposals are expected to commence during the Austrian Presidency. The UK’s JHA opt-in applies to both proposals so the Government must notify its opt-decisions to the EU by 29 August.56 In particular, Article 4(a) of the UK’s opt-in Protocol57 applies, meaning that the UK could be excluded from the existing Regulations if it does not opt-in and that decision makes the new proposals inoperable for other Member States. It would have to bear consequential financial costs.

8.3The proposed Regulation on taking evidence (document (a)) aims to make it easier for evidence from a person domiciled in one Member State to be taken directly by courts in another Member State (the requesting court). Measures include a new power to compel a person to give evidence directly to a requesting court, mandatory electronic transmission of requests to take evidence, a presumption that a request has been received if unanswered for 30 days, more use of evidence by videoconferencing, enabling evidence to be taken by diplomatic officials, clarifying the definition of a “court” and mutual recognition of digital evidence. A more detailed account of the proposal is set out at paragraph 8.13.

8.4In an Explanatory Memorandum on the taking of evidence proposal (document (a)) dated 19 June, the Lord Chancellor and Secretary of State for Justice (David Gauke) broadly supports the updating of the existing Regulation in line with modern communication technology. He recognises that overall the existing Regulation has worked well. But he identifies certain concerns about the new proposal. These include: fundamental rights questions raised by the compulsion to give direct evidence (Article 47 on the “right to an effective remedy i.e. fair trial is engaged); the necessity and allocation of costs58 of the dedicated IT systems; restrictions on a court’s discretion to require attendance in person to give evidence; the “after 30 days” presumption of receipt; the costs of interpreting services in relation to evidence by videoconference; the taking of evidence by diplomatic officers; the impact on mutual trust of the potential breadth of the definition of “court”; the potential risk to judicial discretion from too restrictive an obligation to mutually recognise digital evidence without regard to standard of proof or evidentiary value of digital evidence in any particular case; and the lack of clarity about the role of Member States in a monitoring system.

8.5The proposed Regulation on service on documents throughout the EU (document (b)) aims to make it easier for judicial documents (created in the course of court proceedings) and extrajudicial documents ( created in out-of-court proceedings e.g. family cases before a public authority) to be served in cross-border cases. Measures include a centralised transmission system, supported by national systems to be funded by Member States (with some EU funding available); options for national assistance with finding addresses; permitted refusal of documents on language grounds; specific acknowledgment of service forms for postal providers; direct service by competent persons in the Member State where service is being effected; direct electronic service subject to certain conditions and safeguards for defendants in relation to default judgments. A more detailed account of the proposal’s provisions is outlined at paragraph 8.14.

8.6In a separate Explanatory Memorandum of the same date as document (b), the Minister broadly welcomes the aims of the service of documents proposal and recognises the value of the existing Regulation. But as with the “taking of evidence” proposal (a) he identifies areas of concern. These include: the necessity of a bespoke electronic transmission system to be funded by Member States and the costs on receiving agencies on printing out requests even if there are overall postage savings. He highlights that Scotland may have to change its existing system for the service of documents (based around sheriff officers and messengers at arms) to accommodate a single agency for transmitting and receiving requests. In terms of assisting with finding addresses for people to be served, the UK does not have domicile register and judicial assistance is not available for domestic cases, so the Minister considers that providing practical guidance will be the preferable option. Also, the Government will need to assess the implications of direct service by postal providers since this is not currently permitted in England and Northern Ireland under the current EU Service Regulation. Regarding electronic service, the Government will need to assess how the proposals differ from existing UK legislation.

8.7However, the Government specifically supports the following clarifications provided by the proposal: that addressees can refuse service on language grounds (backed up by court verification) and that documents can be served on other adults at the home address concerned. The Government also approves of the suggested strengthening of safeguards for defendants in relation to default judgments.

8.8We thank the Justice Secretary for his Explanatory Memoranda on these proposed Regulations. We found them helpful on the substance of the proposals and in identifying areas of concern, but deficient in identifying Brexit implications. There is little effort made to relate the impending opt-in decisions to UK aspirations for a future partnership with the EU on civil and commercial justice cooperation. That may be because the Government’s aspirations, set out in the UK-EU Future Partnership Paper on civil judicial cooperation59 and technical slides, remain unclear and articulated only at a high level. We explore this further below, but acknowledge the efforts of the Minister and his officials to engage with us already on these issues more generally.60

8.9It would be helpful if the Government could give us an early indication before 16 July of the likely opt-in decisions and any corresponding reasoning. This would enable further consideration by us before the Summer recess. We do not express a view on whether the Government should opt-in to either proposal. But we anticipate that decisions to opt-in could be likely because that way the Government could influence the negotiations of these proposals while it still has a vote before the transition/implementation period commences on 30 March 2019. Opting-in could also protect the UK’s position in relation to both the existing Regulations and current proposals. The estimated negotiation timetable makes any “wait and see” approach of a post-adoption opt-in out of the question.

8.10We note that there are no provisions for cooperation with third countries in these proposals nor in the existing Regulations which they will amend. However, there might be some degree of precedence provided by the 2005 international agreement between the EU and Denmark which extends the provisions of the original service of documents Regulation to Denmark — there is no equivalent agreement for taking of evidence.61 This legal framework for cooperation was necessary because Denmark has an opt-out from the entire area of EU Justice and Home Affairs.62 However, the agreement subjects Denmark to CJEU jurisdiction not only in terms of the interpretation of the agreements but also in requiring Danish courts to “take due account of the rulings contained in the case law of the Court of Justice” on the Regulation (Article 6 of the agreement). Denmark is also susceptible to infringement proceedings (Article 7 of the agreement). Could the Minister please confirm:

8.11Should cooperation after the expected transition/implementation period, on the above basis not prove possible then we remind the Government of what it said in its Future Partnership Paper last August:

“The Government does not consider that existing international conventions would be sufficient, on their own, to deal with civil judicial cooperation post-Brexit:

Existing international conventions can provide for rules in some areas, but they would not generally provide the more sophisticated and effective interaction, based on mutual trust between legal systems, that currently benefits both EU and UK business, families and individual litigants”65

Could the Minister please confirm therefore that the Government would not be satisfied with relying on the 1970 Convention on the Taking of Evidence and the 1965 Convention on Service Abroad of Judicial and Extrajudicial documents?

8.12On the substance of the proposals themselves, we share some of the Government’s concerns from a legal perspective in relation to proposal (a). We would welcome further legal analysis from the Government as to whether Article 47 of the Charter (and its ECHR equivalent Article 6) could be breached if an individual is compelled to give evidence directly to a court in another Member State. In the same vein, we are also concerned about the potential for undermining court discretion in assessing the evidentiary value and relevance of digital evidence in any particular case and as to whether evidence should be given in person. We note the potential impact on the existing system for service of documents in Scotland and ask to be keep updated on consultations with the Scottish Executive on this issue. On proposal (b), we would be grateful if the Minister would share in due course the Government’s assessment of the differences between the current UK legislation on electronic service and these proposed new EU rules. On both proposals, we would be interested in further information on the likely costs to Member States of the new centralised and national IT systems that will be required. Will the Government be preparing an Impact Checklist?

8.13Finally, we ask the Minister to keep us updated on the progress of the negotiations and the likely timing of adoption in the light of Brexit and transition. In the meantime, we retain the proposals under scrutiny. We draw them and this chapter to the attention of the Justice Committee and the Joint Committee on Human Rights.

Full details of the documents

(a) Proposed Regulation of the European Parliament and of the Council amending 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 and commercial matters : (39870), 9620/18, COM(18) 378; (b) Proposal for a Regulation of the European Parliament and of the Council amending Regulation (EC) No 1393/2007 on the service in the Member States of Judicial and Extrajudicial documents in civil or commercial matters: (39869), 9622/18+ ADD 1–3, COM(18) 379.

The “Taking of Evidence” proposal in more detail (document a)

8.14The proposed Regulation would:

The “Service of documents” proposal in more detail (document b)

8.15In particular, the proposed Regulation:

Previous Committee Reports


55 See also that Article 64 of the draft Withdrawal Agreement (ongoing judicial cooperation procedures) provides for how these two measures, as well as others, will be deal with as a separation issue in view of UK exit from the EU.

56 This is based on the Government’s information that the proposal was presented in the Council on 6 June. This would also mean that this Committee has until 1 August to express a view on the opt-in decisions.

57 Protocol 21 to the EU Treaties.

58 Unlike the Service of Documents Regulation there is no clarity on whom the burdens of costs shall fall.

59 Department for Exiting the European Union, Providing a cross-border civil judicial cooperation framework — a future partnership paper, 22 August 2017.

60 The Minister’s letter of 13 June to Sir William Cash (Chairman of European Scrutiny Committee) on the publication of the UK’s technical slides and offering a technical briefing by officials to the Committee.

61 Agreement between the European Community and the Kingdom of Denmark on the service of judicial and extrajudicial documents in civil and commercial matters, Official Journal L300, 17/11/2005 P. 0055 — 0060. Also, see Council Decisions on signature and conclusion of that agreement by the EU.

62 See Protocol 22 to the EU Treaties.

63 Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.

64 Protocol N° 2 on the uniform interpretation of the Convention.

65 Department for Exiting the European Union, Providing a cross-border civil judicial cooperation framework — a future partnership paper, 22 August 2017.

66 In line with Article 290 TFEU.

67 Also, where there is an application by the defendant for a review for relief against the effects of the expiry of the time limit for an appeal that application should be made no more than two years following the date of the judgment. Under the current Regulation the equivalent deadline is expressed as no less than one year following the date of the judgment.

Published: 17 July 2018