Open Issues Concerning the Non-Mandatory Character of the Cross-Border Taking of Evidence Regulation

ERA Forum DOI 10.1007/s12027-017-0475-2 ARTICLE

Open issues concerning the non-mandatory character of the Cross-Border Taking of Evidence Regulation

Aleš Galicˇ1

Abstract The CJEU has already confirmed that the European Evidence Regulation (EER) is not of a mandatory character and that a court may rely on its national law in order to obtain evidence located abroad. Nevertheless, numerous dilemmas still exist. In the author’s view the CJEU’s findings in regard to the parties examined as witnesses can be extended to proper witnesses although this is still controversial concerning the question whether coercive measures may be used. The author is also of the opinion that it is not possible to organise cross-border videoconferences without resort to the EER, and finds it questionable whether a videoconference with a party located abroad, but not for purposes of taking evidence, falls within the scope of the EER. Finally, the problem is addressed as to whether the fair trial requirements oblige the court to apply the other available methods of cross border taking of evidence if the first chosen method fails.

Keywords Evidence · International civil procedure · EU law · Judicial cooperation

1 1 Introduction

Courts within the European Union are increasingly faced with civil cases where it is necessary to take evidence in a Member State other than the one in which the proceedings were brought. It is essential that requests for the performance of the taking of evidence are executed expeditiously, that the parties have effective access to evidence, and that adequate procedural safeguards are in place. This is the main objective

B A. Galic,ˇ Dr. Sc., Professor of Civil Procedure and International Private Law [email protected]

1 University of Ljubljana, Ljubljana, Slovenia A. Galicˇ of the European Evidence Regulation (hereinafter: EER1). However, the EER merely encourages judicial cooperation and does not aspire to achieve the harmonisation or even the unification of the law of evidence among the Member States. The EER pro- vides two methods for the taking of evidence. First, it enables the taking of evidence by the requested court following a request transmitted directly from the requesting court to the requested court (“active judicial assistance”). Second, it also enables the direct taking of evidence by the requesting court (“passive judicial assistance”). The latter is subject to the authorisation of the central authority of the requested state and can only be achieved on a voluntary basis of the persons concerned. Concerning numerous issues, e.g. the structure, scope of application, costs, taking of evidence through the requested court, and the law applicable to the performance of the requests, the EER is inspired by the Hague Evidence Convention of 1970.2 Thus, as the European Court of Justice (hereinafter CJEU) confirmed in Werynski,3 the clarification of certain concepts that has already been achieved in the context of the Hague Convention can also be relied upon when it comes to identical issues in the EER. In many aspects, however, the EER departs from the system established by the Hague Convention. Most importantly, it is not the protection of national sovereignty that is the major concern with regard to cross-border legal assistance within the EU. Although concerns regarding national sovereignty are still relevant, the major concern today is how to ensure effectiveness and adequately protect the interests of the individual litigants.4 It is their right of access to court and the rights of defence (the right to be heard, which also includes safeguards concerning evidence) that are at stake. Cross-border taking of evidence should be organised in such a manner so as to reduce costs and save time, but also to ensure adequate results on the merits. In line with these principles, the EER promotes direct cooperation between the courts of the EU Member States (rather than relying on the system of “central authorities”, as set out in the Hague Convention) and it also allows direct taking of evidence by the court of origin. Moreover, it is no longer possible to invoke public policy as grounds for the refusal of a request (at least when taking evidence through the requested court is concerned). In addition, compared to the Hague Convention, the EER is modernised as it relies heavily on the use of standard forms and promotes the use of modern technologies. Thus far, the CJEU has had rather few opportunities to clarify issues concerning the application of the EER. Numerous important and disputed questions still remain unanswered, which reduces legal certainty and predictability in this important area of judicial cooperation. However, the CJEU has already clarified certain important questions and has set standards to be applied in future cases. The most important issue with regard to the EER that the CJEU has been asked to clarify concerns the question of whether the EER is of a binding (mandatory) or

1Council Regulation (EC) No. 1206/2001 of 28 May 2001 on cooperation between the courts of the Mem- ber States in the taking of evidence in civil or commercial matters [2001] OJ L 174/1. 2Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, concluded 18 March 1970. 3Case C-283/09 Werynski ´ , EU:C:2011:85. 4Cf. Huber [9], p. 116 and 120; Knöfel [11], p. 234. Open issues concerning the non-mandatory character. . . non-binding (optional) nature. When, for example, a witness lives abroad, is a judge restricted to applying one of the two methods provided by the EER, or may he or she rely on the rules on the taking of evidence in his national law and summon a foreign witness to appear before it? The CJEU—ﬁrst (for parties examined as witnesses) in Lippens5 and subsequently (for expert evidence) in ProRail6—answered this question in the afﬁrmative. Nevertheless, numerous dilemmas still exist. These relate, for example, to the question of whether the ratio of Lippens can be extended to proper witnesses and not just parties summoned as witnesses, and whether coercive measures may be used against uncooperative foreign witnesses who are not parties to the litigation. Furthermore, is it possible to organise cross-border videoconferences without resort to the EER, and, in addition, whether a videoconference with a party located abroad, but not for purposes of taking evidence, falls within the scope of the EER. It is also disputable how the court should proceed if the chosen method (either under national law or as provided for in the EER) fails. Is the court then obliged to use all other possible methods before proclaiming, to the detriment of the party bear- ing the burden of proof, that the evidence has failed? Thus, this paper, relying on the case law of the CJEU where possible, attempts to shed some light on the interface between national law and EU law concerning the cross-border taking of evidence.

2 Parties examined as witnesses

In Lippens the CJEU confirmed that the EER is only to be used when the court of the first Member State decides to take evidence in one of the two ways provided by the EER. The Regulation does not determine when the taking of evidence abroad must be carried out in the first place. Neither does it contain any provision governing or excluding the possibility of the court of a Member State summoning a party residing in another Member State to appear and make a witness statement directly before it. It is left to the national law of each contracting state to define when evidence needs to be taken abroad.7 Thus, a judge may summon a witness who lives abroad to appear before it. Of course, the summons needs to be served on the witness abroad pursuant to the EU Cross-border Service Regulation.8 The Court noted that in certain circumstances it might be simpler, more effective, and quicker to hear a party in accordance with the provisions of its national law instead of using the means of taking of evidence provided for by the EER. This method based on the application of national law may give the court the possibility to question the party directly, to confront the party with the statements of other parties or witnesses present at the hearing, and to verify itself the credibility of the party’s statements with possible additional questions, with consideration of all the factual

5Case C-170/11 Lippens, EU:C:2012:540. 6Case C-332/11 ProRail, EU:C:2013:87. 7On the non-exclusivity of the EER, see: Huber [9], p. 118; Hess [7], p. 464; von Hein in Rauscher [17], EG-BewVO, Art. 1, No. 18. 8Regulation (EC) No. 1393/2007 of the European Parliament and of the Council of 13 November 2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters [2007] OJ L 324/79. A. Galicˇ and legal aspects of the case. According to the recitals of the Preamble to the EER, the aim of this instrument is to make the taking of evidence in a cross-border context simple, effective, and swift. Consequently, the interpretation of the provisions of the EER that prohibits a court from summoning as a witness a party residing in another Member State and hearing that party under the national law of the court that has jurisdiction as to the substance of the matter would be contrary to the above-mentioned purpose of the EER.9 It would also limit the possibilities of the court to hear that party. The EER therefore does not govern the taking of evidence exclusively or ex- haustively. Its aim is to facilitate the taking of evidence, even by allowing the use of other instruments having the same purpose. In Lippens the CJEU also conﬁrmed that if the party fails to appear as a witness without a legitimate reason, the court remains free to take any measures available under the national law of its Member State if the measures are applied in accordance with the rules of law of the EU. This seems like a far-reaching and categorical statement, however its scope might in fact be much narrower than it seems on the face of it (see infra, Chap. 4).

3 Experts

In ProRail the CJEU extended its position as regards the non-binding character of the EER to expert evidence. The CJEU recalled that the aim of the Regulation is to make the taking of evidence in a cross-border context simple, effective, and rapid, as well as to extend and not restrict the means available for obtaining evidence abroad. Thus, the court may appoint an expert pursuant to the rules of its national law, even though (a part of) the expert’s work would need to be accomplished abroad. The appointed expert is not prevented from accomplishing a part of his or her task (e.g. inspections, measurements, examinations, interviews) abroad and there is no need to seek the approval of foreign authorities.10 This decision came as a surprise to many lawyers from civil law countries that deem a court-appointed expert to be an “extended hand” or an “ofﬁcer” of the court and concerns were raised that the sovereignty of the foreign state would be breached in the case of such activities of an expert appointed by a foreign court.11 Even more importantly, before the ProRail judgment, many authors considered that the explicit mention of experts in Art. 17 EER prevents an expert from one Member State from performing his or her tasks in the territory of another Member State unless an authorisation for the direct taking of evidence pursuant to the EER is obtained.12 However, the CJEU does not share this view.13 In the CJEU’s eu-

9Case C-170/11 Lippens, EU:C:2012:540. Such view had been adopted already by Huber [9], p. 118. 10Case C-332/11 ProRail, EU:C:2013:87. 11For a typical view, see: Bach [3], p. 315. Cf. von Hein in Rauscher [17], Art. 1 EG-BewVO, No. 25; Leipold [12], p. 97; Hau [6], p. 228. 12Huber [9], p. 118; Hau [6], p. 229; von Hein in Rauscher [17], Art. 1 EG-BewVO, No. 25; Betetto [5], p. 143; with reservations, Leipold [12], p. 97. On the contrary, the Oberlandesgericht Oldenburg (Order of 29.11.2012, 8 W 102/12) held that it can appoint an expert to conduct an investigation concerning construction defects at a private house in the Netherlands without giving notice or gaining the approval of the Dutch authorities. 13Case C-332/11 ProRail, EU:C:2013:87. For a positive evaluation, see: Slonina [18], p. 430. Open issues concerning the non-mandatory character. . . roautonomous interpretation for the purpose of the cross-border taking of evidence, a court-appointed expert is clearly not an “ofﬁcer of the court.”14 The CJEU however concedes that, if the expert appointed by a court in one Member State has to go to another state to carry out investigations which have been entrusted to him, this can in certain circumstances affect the powers of the Member State in which such investigations take place. This is especially the case where the investigation is carried out in places connected to the exercise of such powers or in places to which access, or some other action, is prohibited or restricted under the law of the Member State. In such cases, assistance of the requested court, as available under the EER must be sought. The requesting court can also apply rules for the direct taking of evidence and arrange the formalities to be carried out by an expert investigation directly in another Member State.15

4DoestheratioofLippens cover merely parties examined as witnesses, or proper witnesses as well?

The Lippens case concerned a specific situation where a person who was at the same time a party to proceedings was summoned and examined as a witness. The EER does not provide for a difference in treatment based on the status of the persons heard as witnesses depending on whether or not they are parties to proceedings.16 Also the Hoge Raad formulated its question for a preliminary ruling in general terms—thus for witnesses in general. Yet, the CJEU restricted itself to giving an explicit answer merely as to parties examined as witnesses (although with no explicit exclusion of witnesses in general). The question is therefore posed whether the standards set by the CJEU in this case can be extended to proper witnesses.17 What makes it all the more complicated is that some national laws do not distinguish between the examination of the parties and of witnesses (e.g. of the UK and the Netherlands), other national laws perceive these as two distinct means of evidence (e.g. Slovenia, Austria), whereas some national laws have traditionally prohibited the examination of parties for the purpose of taking evidence altogether (e.g. Italy). The main finding in Lippens is that the EER does not enjoy exclusivity and does not prevent the court from applying the methods provided by its own national law. It is, I believe, safe to conclude that this finding applies to proper witnesses as well. All the reasons given by the CJEU in support of its finding concerning parties summoned as witnesses apply equally to proper witnesses. This is true both for a grammatical interpretation as well as for a teleological interpretation with regard to the effectiveness and efficiency of the taking of evidence. Concerning the latter, the reasons given by the CJEU apply to an even greater extent to proper witnesses than to parties summoned as witnesses (the possibility for the court to confront them with the

14For a critical view, see: Bach [3], p. 316. 15Case C-332/11 ProRail, EU:C:2013:87. 16Opinion of AG Jääskinen delivered on 24 May 2012, C-170/11 Lippens, EU:C:2012:311, para. 63. 17For a restrictive view, see: McGuire [13], p. 844; Kern [10], p. 51. A. Galicˇ statements of other witnesses and to verify itself the credibility of his or her statements, etc.). It should be recalled that the non-mandatory nature of the EER was subsequently reconfirmed in relation to expert evidence as well (ProRail). There is no plausible reason why the approach should be different when it comes to proper witnesses. Thus a judge who considers that he or she can obtain evidence located in another Member State without resort to the EER may use the methods provided by his or her own national procedural law. He or she may summon a witness residing abroad to appear before the court.18 The second important finding in Lippens is that a court applying its national law may use coercive measures if the summoned person does not comply. It is doubtful whether this position can be automatically extended to proper witnesses. It should be noted that the situation concerning parties summoned as witnesses (which was the case in Lippens) is specific. In such cases, genuine coercive measures are usually not necessary—and they were not contemplated in the given case. It suffices, as provided in the Dutch Civil Procedure Act, that the court can draw adverse inferences from the party’s refusal to testify. In most cases, this is sufficient to make parties summoned as witnesses cooperate. The situation is usually (although not always19) different when it comes to uncooperative proper witnesses. Coercion against them usually consists of imprisonment for contempt of court or the imposition of a fine (both intended to compel performance) or of bringing the witness forcibly to the court by the police. The major dilemma when it comes to such measures, if applied against a witness residing abroad, is whether they are compatible with the principle of territoriality, which is still one of the cornerstones of international public law.20 A court of one state can validly exercise its sovereign powers (of which the taking of evidence is an element) only within its boundaries.21 Of course, measures involving physical coercion in the territory of a foreign state are not an option (i.e. imprisonment or bringing the witness forcibly to the court). The third one, however, i.e. imposing fines against a witness who fails to appear in court for no valid reason, could be relevant. What is specific in summoning a witness from one country to appear in the court of another country is that the contemplated procedural act takes place exclusively within the court’s jurisdiction (including the effect of possible fines). On the other hand, the “evidentiary material” is—when the summons is issued—located abroad. Many commentators posit that imposing such fines against a person located abroad would violate the other state’s sovereignty (even if they were only enforceable within that jurisdiction).22

18Accord, e.g. McGuire [13], p. 845. 19If a witness is under the control of a party (e.g. as its employee), it can be expected that the party can ensure the attendance of the witness. In many civil procedure national systems, if a witness who is not a party, but who is under the control of a party, fails to attend a hearing, and coercive measures are then applied against the party, the court would usually draw adverse inferences. At least for such cases there should be no doubts that positions reached in Lippens can be extended to them. 20See, e.g. Trocker [19], 268. 21McGuire [13], p. 842, Opinion of AG Jääskinen delivered on 24 May 2012, C-170/11 Lippens, para. 29. 22E.g. Bach [2], p. 833; von Hein in Rauscher [17], Art. 1 EG-BewVO No. 20; Betetto [5], I-142, Nagel/Gottwald [14], para. 8, No. 7; McGuire [13], pp. 842Ð844. For a different opinion, see: Hess/Müller [8], p. 176. Open issues concerning the non-mandatory character. . .

As observed by AG Jääskinen, some governments of EU Member States shared this view as well, after the CJEU invited them to express their position.23 In this regard, a distinction may be made from the perspective of international public law between foreign parties summoned as witnesses, on the one hand, and other foreign witnesses, on the other. The former are already subject to the jurisdiction of a court in another country, so imposing coercive measures against them can in any case be considered to fall within the jurisdiction that the court already has over the party residing abroad. No such connection, however, exists with regard to other witnesses residing abroad.24 One can however, also argue that imposing fines on a witness residing abroad does not infringe the sovereignty of the foreign state. The court does not regulate what the witness should do in that other country, but only in the country of the court’s jurisdiction (i.e. appear before that court and testify). In addition, also the fines do not have an extraterritorial effect—they can only be enforced in the country of the court that imposed them (thus, they can only be effective if the person affected has assets within that jurisdiction). Thus, in this view, such orders do not have any extraterritorial effects. It is true, however, that when the foreign witness is summoned, he or she is not within the jurisdiction. Summoning him or her presupposes that he or she is expected to travel to the country where the proceedings are to take place. But this could also be considered merely a “preparatory step” in order to take evidence, and does not amount to exercising sovereign power. Merely the evidentiary hearing itself, the obligation of the witness to answer questions (fully and truthfully), and the possible imposition of fines relate to the taking of evidence in the proper sense. But this all takes place and produces effects within the boundaries of its jurisdiction. In its judgment the CJEU made no reference whatsoever to the issue of state sovereignty.25 It merely imposed the condition that coercive measures should be in accordance with EU law. What this exactly means remains unclear. AG Jääskinen noted that EU law does not contain any rules governing the matter, however, general principles, such as the principle of proportionality can limit the discretion available to Member States in this area.26 This would rather support the view that such measures are not already, per se, inadmissible, but that a proper balance must be sought. The interpretation that the reference to EU law actually amounts to a reference to international law (since it is a principle of EU law that international law must be respected) is not convincing. If that were the CJEU’s intention, it would be much simpler just to make reference to compliance with international law. It should be noted that the controversy surrounding the so-called “extraterritorial obtaining of evidence” has—already concerning the Hague Convention—developed in the context of measures (foremost the discovery orders of US courts against de- fendants from third countries) against the parties, not against witnesses.27 Actually,

23Opinion of AG Jääskinen delivered on 24 May 2012, C-170/11 Lippens, EU:C:2012:311, para. 54. 24Opinion of AG Jääskinen delivered on 24 May 2012, C-170/11 Lippens, EU:C:2012:311, para. 65. See also McGuire [13], p. 844; Kern [10], p. 51, who conclude that the positions in ProRail concerning coercive measures cannot be extended to proper witnesses. 25For a critical view, see: Knöfel [11], p. 232; Kern [10], p. 50. 26Opinion of AG Jääskinen delivered on 24 May 2012, C-170/11 Lippens, EU:C:2012:311, para. 55. 27See, e.g. Besso [4], p. 72; Knöfel [11], p. 231 and the Permanent Bureau of the HCCH [16], pp. 1Ð10. A. Galicˇ much more is at stake where foreign uncooperative parties are concerned. Merely on the face of it, it seems that the indirect coercion of the court drawing adverse inferences therefrom (against the party) is a milder sanction than, for example, imposing fines (against the witness). But the former can amount to a draconian sanction—if it results in the loss of an important case. Furthermore, these orders are often gen- uinely “extraterritorial” as they require foreign parties to perform certain actions in their country—e.g. to allow the inspection of their premises, access to their files or to make depositions. One could easily argue that such measures both jeopardise national sovereignty as well as subject foreign nationals to undue and disproportionate pressure to a much greater extent than summoning foreign witnesses. If no fines can be imposed against uncooperative foreign witnesses, the ability of a court to summon a foreign witness to appear before it would remain ineffective in practice. Experience shows that persons residing abroad (unless under the control of one of the parties) often ignore summons. The provisions of national law governing the consequences of non-appearance form a part of national law concerning summoning witnesses. The latter without the former remains ineffective. In such case, the benefits of the possibility of summoning foreign witnesses—confronting them with the statements of other witnesses, assessing their credibility, gaining a personal impression—are lost. The court would namely need to resort to the taking of evidence through a requested court under the EER, as that would remain the only court with the power to apply coercive measures against an uncooperative witness (Art. 13 EER). But in that case, both the efficiency and promptness of the taking of evidence as well as the benefits of the principle of immediacy (in law of evidence) are lost. It should thus be argued that if the CJEU confirmed that the national court can apply the methods provided under its national law in order to hear witnesses located abroad, it presupposed that this also includes the application of measures that are a necessary precondition for the effectiveness of such methods. In other words, if the national law on taking of evidence can apply, it can only apply “in a package”—together with those provisions which ensure its effectiveness. Concerns that imposing coercive sanctions against uncooperative foreign witnesses violates the national sovereignty of a foreign state are, in my opinion, un- founded. It has to be borne in mind that the requirement that a witnesses attend the hearing in a civil case is not for the benefit of the court, and neither is it intended to demonstrate the state’s power. It exists to enable individual litigants effective access to justice. This should be the main concern when setting standards regarding the taking of evidence with cross-border implications. Admittedly, however, the interests of other private persons—i.e. persons required to give evidence (either in the form of testimony or by the production of documents) should not remain overlooked and a proper balance should be sought between the interests of the parties to proceedings, on the one hand, and a person required to give evidence (such as witnesses and persons ordered to produce documents) on the other. But this would, I believe, be better achieved through the harmonisation of the law of evidence among Member States concerning the privileges and immunities of witnesses and the obligation of third parties to produce documents.28

28On the need to adopt EU-uniform standards concerning cross-border taking of evidence in order to ensure proper safeguards for the persons concerned, see: Hess [7], p. 475. Open issues concerning the non-mandatory character. . .

It should be stressed that the discussed matter remains controversial and one can hope that the CJEU will soon have a chance to contribute to a much-needed clariﬁca- tion.

5 If a summoned foreign witness does not appear: “failed evidence” or resort to the EER?

Bringing witnesses to the court of origin often involves a great effort in terms of time and cost. The question therefore arises whether in a case where a summoned foreign witness does not appear, for any valid reason, in the court where proceedings on the merits are pending, the judge may state that the taking of evidence was not successful (to the burden of the party relying on this witness’s testimony). Or does the judge in such a case need to resort to application of the EER? While the EER does not address this issue, the courts of various Member States have come to divergent solutions. In Slovenia an appellate court quashed the judgment of the first instance court, which, after a witness living in Italy did not comply with the court’s order to appear at the main hearing (thus, after the attempt to take evidence pursuant to the national law failed), did not apply the EER.29 In the appellate court’s view, when the judge’s efforts to take evidence without application of the EER remained unsuccessful, he or she should apply the EER. If a court, when a foreign witness fails to appear, “takes the easy way out” and immediately applies the rules on the burden of proof, without first trying to take evidence by the methods provided in the EER, the party’s right to be heard is breached. On the contrary, the German Bundesgerichtshof (BGH) confirmed a first instance court’s decision that the hearing of a witness in the Netherlands should be omitted for reason that the witness located abroad was properly summoned to appear at the court and did not comply with this order without justifiable reasons. The BGH accepted the reasoning that the proposed method of legal assistance was not an option due to the complicated factual issues. For this reason, the judge should not have ignored the need to acquire his personal impression of the testimony.30 There is no clear-cut answer to the mentioned question. The fact that the EER does not specifically regulate the issue does not mean that there are no restrictions in this regard. Above all, the guarantees of a fair trial, which include the “right to evidence”, have to be observed. In principle, it is thus necessary for the court to gen- uinely try to obtain evidence by all reasonably available means. Thus, in principle, if the attempt pursuant to the national law fails, one or both methods provided for in the EER should be contemplated. However, the principle of proportionality applies as well and a proper balance must be struck between the resources (both of the court and the parties) and time spent and the goal of achieving an adequate result on the merits. Therefore, it cannot be automatically excluded that in certain cases the proper way to proceed is not to apply the EER even if the attempt to take evidence pursuant to the national law has failed. It all depends on the circumstances of the given case. The elements that should be considered include the value of the claim, the urgency of

29The Koper Court of Appeal (Višje sodišˇce v Kopru), Decision I Cp 1182/2005, 27.2.2007. 30BGH, Order (Beschluss), 24.7.2013-IV ZR 110/12. A. Galicˇ deciding on the dispute, whether the witness is under the control of the party—and if it could thus be expected from that party to ensure his or her presence and draw adverse consequences if he or she fails to do so, the possible effectiveness of coercive measures (if these are at all admissible; see supra, i.e. whether the witness has assets within the jurisdiction, such that the imposed fine could be enforced), the complexity of the issues and whether the foreign judge (if the method of active judicial assistance is chosen) can be expected to effectively conduct the examination; the cooperative- ness of the witness (in the event the direct taking of evidence is contemplated; this can namely only be done on a voluntary basis). Finally, similar dilemmas may arise within the system of the EER as well: if the chosen method is not successful (e.g. the direct taking of evidence), whether the other method (the taking of evidence through the requested judge) should be attempted as well. The possibility that the judge can adapt the manner of unfolding of the proceedings to the circumstances of the particular case is a positive development. Judges in the EU Member States should be expected, by applying the principle of proportionality and making assessments on a case-by-case basis, to proceed in a manner that ensures the proper protection of the fundamental guarantees and sound administration of justice. The CJEU has not yet had an opportunity to address these issues directly. In Aguirre Zarraga31 it did, however, at least mention the EER in a very controversial case concerning the hearing of a child (and the parent abductor) in the context of a cross-border child abduction. The case concerned the unlawful retention of a child in Germany, instead of bringing him back to Spain. Pursuant to Art. 10 of the Brus- sels II Regulation,32 the Spanish court (as the court of the child’s habitual residence before the act of child abduction took place) retained jurisdiction to decide on matters concerning parental responsibility. It, however, had to ensure that the abducting parent and the child—who at the relevant time were both physically in Germany—were given the opportunity to be heard in the proceedings. Instead of availing itself of the mechanisms provided by the EER, the Spanish court summoned the child and the abducting mother to appear before it. Thereby it imposed the condition on them that they would not be free to leave Spain after the hearing. In consequence, they failed to attend court in Spain. In addition, they were also denied permission to be heard via videoconference. This case very clearly shows the possible consequences of a court’s decision to summon a witness (or a party) residing abroad pursuant to its national law, instead of availing itself of the methods of taking evidence provided by the EER. The Spanish court (Juzgado de Primera Instancia e Instrucción No. 5 de Bilbao) held that the child’s (and the abductor’s—but this was not the focus of the case) right to be heard was not breached, as the Court had provided the child with the opportunity to be heard. The court stressed that affording the opportunity to be heard was sufficient; the Regulation does not require that the child use it. Neither is there any rule that a party’s request to exercise this right via a video-link should be accepted. For that reason, the Spanish court certified that the return order, issued pursuant to Art. 11/8 of the Brussels IIbis, was to be directly enforceable pursuant to Art. 42 of

31Case C-491/10 Aguirre Zarraga, EU:C:2010:828. 32Council Regulation (EC) No. 2201/2003 of 27 November 2003 concerning jurisdiction and the recog- nition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No. 1347/2000 [2003] OJ L 338/1. Open issues concerning the non-mandatory character. . . the Brussels IIbis.33 On the contrary, in the view of the German court (Oberlandes- gericht Celle), the actions of the Spanish court amounted to “serious infringements of fundamental rights” and it indicated that the position of the Spanish court (i.e. its certification that the right of the child to be heard was respected) was “manifestly incorrect.” The CJEU did not decide which of the two competing views was correct. The question in Luxembourg was merely whether the court in a country of enforcement may, in exceptional cases of human rights infringements, review the certificate issued by the court in the country of origin. The Court answered this question in the nega- tive; assessment of whether there is such an infringement falls exclusively within the jurisdiction of the courts of the Member State of origin. Put simply: the “last word” is reserved for the court of origin (in casu: the Spanish court; including its appellate instances in Spain). The CJEU nevertheless indicated that, taking into account all circumstances of the case, the decision must be made with “due regard to the child’s right freely to express his or her views and that a genuine and effective opportunity to express those views was offered to the child, taking into account the procedural means of national law and the instruments of international judicial cooperation.” It seems that thereby the CJEU indirectly implied that the standards of a fair trial are of paramount importance when making a choice between the methods available under the national law, on the one hand, and the methods made available by the EER or a combination (in the sense of repeated attempts) thereof, on the other. It should be stressed that cases concerning child abduction are specific. Here the decision whether to summon a person (the abducting parent and the child) to appear at the court hearing in the country of origin or to use methods provided by the EER is particularly crucial. Such a person is namely most often unwilling to appear in the court of origin, fearing criminal prosecution and/or the confiscation of his or her and the child’s travel documents. Thus, if the method of summoning these persons under national law is chosen, this would often, in practical terms, mean that the child and the abducting parent will not be heard in the court of origin at all. On the other hand, it is not that self-evident that the civil court should make special arrangements concerning the conduct of the hearing merely due to the abducting parent’s fear of criminal prosecution. The same is true for his or her concern that the gains of the child abduction would be lost if the child, after attending the hearing in the court in the country of origin, would then remain there until the final decision is reached.34 In addition, at least for the time being, it is not mandatory for the Member States

33Notwithstanding a judgment of non-return pursuant to Article 13 of the 1980 Hague Child Abduction Convention (in casu: issued by a German court), any subsequent judgment that requires the return of the child issued by a court having jurisdiction on the merits under the Brussels II Regulation (in casu: the Spanish court) is directly enforceable, without any possibility to object to enforcement in the country of enforcement (Art. 11). Nevertheless, the court of origin must, prior to issuing the certiﬁcate of direct enforceability, examine whether certain conditions have been met—in particular whether the child had an opportunity to be heard (Art. 42). 34It is a different issue whether the abducting parent could ask for a “safe harbour order” when it comes to the enforcement of decisions ordering the return of the child. Safe harbour orders provide for arrangements whereby the child will return to a safe environment and that the abducting parent, if she is a primary carer, will be able to accompany him or her without exposing him or herself to criminal prosecution and arrest or, alternatively, to leave the country after having handed over the child. Another question is what measures should be adopted in the sphere of criminal proceedings. Initiating criminal proceedings A. Galicˇ that their courts have access to the technical means to conduct hearings via videoconference. Neither is it mandatory that their procedural laws allow for conducting an examination of witnesses and parties via videoconference or to oblige the judge to follow the requests of the parties to schedule videoconferences. Another speciﬁc aspect of these cases is that the hearing of the child (and of the abducting parent) is not evidence in the narrower sense (as a means of establishing disputed facts), but (at least at the same time) a method of ensuring the parties’ right to be heard. It, however, seems that, in the view of the CJEU, the EER may be used for such purposes as well.35 The question remains whether this applies for the hearing of the child in proceedings concerning child abduction or generally. Imagine, for example, that a hearing takes place in Slovenia and the witnesses are present in person, but one of the parties, residing in another Member State, wishes to attend a hearing via videoconference (in order to put questions to the witnesses, to argue points of law, to put forward new facts or evidence, or to determine the procedural timetable with the judge and the other party). It seems to me that such situations would not fall with the scope of application of the EER.

6 Circumventing the EER with the application of modern technologies?

Since the CJEU confirmed that a national court can simply circumvent the EER and avail itself of the methods of summoning, for example, witnesses by its national law, the question arises whether this applies to organising cross-border videoconferences as well. Thus, may the court in one Member State organise a videoconference (e.g. for the examination of a foreign witness who is willing to cooperate) with a person physically present in another Member State without any reference to or procedures under the EER? On the face of it, the answer to this question should be positive. After all, if a court in one Member State can summon a witness residing in another Member State without applying the EER, and that following such a request the witness is physically present in the court, the same should apply if that witness were present in the same court via a video-link. It would seem that the situations, as far as legal issues relating to cross-border taking of evidence are concerned, are identical—the only difference relates to the application of modern technologies. The only relevant question would seem to be whether the national law of the requesting state allows such method of taking evidence. The situation, however, is not so simple. First, it should be noted that Article 17 (which concerns the direct taking of evidence, subject to the authorisation of the central body of the requested state) contains an explicit reference to videoconferences and teleconferences. Thus, the direct taking of evidence by the requesting court can take place in such manner, but subject to the against the abducting parent in the state of origin may namely, practically speaking, influence the decision- maker towards not returning the child. For the effectiveness of the return of the child, initiating criminal proceedings against the child abductor, pending the child’s return to the country of origin, is therefore advised against. See: the Permanent Bureau of the HCCH [15], p. 7. 35For such a view—and consequently for a not very strict differentiation between the examination of the party for purposes of evidence and the hearing of the party for the purpose of submitting further procedural material—see also von Hein in Rauscher [17], Art. 1 EG-BewVO at No. 15; Hess [7], p. 464. Open issues concerning the non-mandatory character. . . authorisation of the central body of the requested state. A question can be raised as to why any court would bother to seek such authorisation (which in some countries can take an excessive amount time) if it is possible to organise a videoconference or a teleconference by circumventing the EER altogether? Using the channels of direct taking of evidence under Art. 17 is not more efficient, since it presupposes a voluntary participation of persons involved. Thus, there is no advantage of direct taking of evidence via videoconference pursuant to Art. 17 EER over circumventing the EER altogether, just a disadvantage of loss of time for preparing the request for authorization and then for receiving it. It can therefore be concluded that if the EU legislature decided to include a rule on direct taking of evidence via videoconference or teleconference in Art. 17 EER, it must have presupposed that without any involvement of the authorities of the requested state is not admissible. Otherwise the rule on obtaining authorization for direct taking of evidence via communication technologies in Art. 17 would be entirely obsolete. This argument however is not so firm. Namely, it should be recalled that a similar situation exists in regard to experts. There is an explicit reference to “experts” in Art. 17 EER as well. Indeed, before the CJEU’s judgment in ProRail many commentators concluded that it follows from that rule that no experts can be “sent” abroad without the requested state’s authorization obtained. But, as explained above, the CJEU didn’t share this view.36 It is undisputed that the concerns of national sovereignty still make it inadmissible for a judge of one member state to perform his judicial duties, in a territory of another state (except in framework of the direct taking of evidence pursuant to Art. 17 EER). True, the EER is—as discussed above—non binding and it does not prevent the court to take evidence pursuant to its national law (e.g. by summoning the foreign witness to appear at the hearing). But this does not mean that the judge from one member state may perform his judicial duties in the territory of another member state. This can only be done if conditions for direct taking of evidence under Art. 17 EER are met. Those who simply argue that videoconference merely means that a foreign witness is (via a video-link) present before the domestic court which summoned her, forget to see “the other half of the same picture”. Namely, that for the very same reason, the videoconference also means that the judge of the domestic court is, for purposes of examination of a witness, (via a video-link) present abroad. Cross-border videoconference in fact takes place in the territory of two countries; thus not only is the witness via video link “present” in the country where proceedings are pending, but also is the judge conducting the hearing also “present” in the country where the witness is situated. The former—summoning a foreign witness without resort to the EER—is admissible. The latter—the performance of the judicial duties in a territory of another state—is not, unless conditions for direct taking of evidence are met. It clearly follows from Art. 17 EER that a judge from one member state may only perform his judicial duties (taking of evidence) in the territory of another member state if the authorization of the central body of the requested state is obtained. Therefore, in my opinion, cross-border videoconferences or teleconferences for purposes of taking evidence, cannot be organised unless one of the methods, set out

36Case C-332/11 ProRail, EU:C:2013:87. A. Galicˇ in the EER is used.37 Thereby pursuant to the EER they can be organised either in the framework of a direct taking of evidence or as taking evidence via the requested court. The method chosen will determine, which judge—the judge from the requesting court or the judge from the requested court—will be the dominus litis of the evidentiary hearing. It should be stressed that the CJEU has not yet ruled on the discussed issue, which thus remains controversial and where eventually a clariﬁcation by the CJEU would be most valuable.

7 Evidence and service of documents: same dilemma concerning the exclusivity of EU instruments, but a different solution

A short reference should be made to the other area of traditional international judicial assistance—cross-border service of documents. Here, the approach of the CJEU concerning the mandatory nature of the applicable EU Regulation is exactly the opposite. In Alder38 the CJEU held that the use of the Cross Border Service Regulation is binding if the addressee resides abroad. Therefore rules of domestic laws, providing for more or less fictitious methods of service within jurisdiction to persons physically not present in the same state, thus making it possible to avoid service abroad, are not compatible with Art. 1 of the Regulation.39 At the first sight it is difficult to see why the approach as to the relation between the EU Regulation and the national law concerning two related issues is exactly the opposite: for the cross-border service of documents, the judge is precluded from relying on his or her national law and must use the methods provided in the applicable Cross Border Service Regulation, whereas for the cross-border taking of evidence, the judge is still free to apply his or her national law and make the EER effectively inoperable. By invoking only a grammatical interpretation one should come to identical results.40 As the CJEU pointed out (Lip- pens, ProRail), the EER only applies “where the court [....] requests,” but does not determine where such a request must be made in the first place. Exactly the same, however, is also the case in the Cross-Border Service Regulation. It applies “where a judicial or extrajudicial document has to be transmitted from one Member State to another for service there” (but it does not define when service must be made abroad in the first place). A closer look at the arguments offered by the CJEU, however, reveals that the approach is consistent and logical. One should go beyond merely an analysis of the wording and invoke a teleological interpretation. Concerning both Regulations, the main concern of the CJEU was to ensure the maximum possible respect for fundamental procedural guarantees. Use of fictitious methods of service (in order to avoid

37Accord Hess [7], 474; von Hein in Rauscher [17], Art. 1 EG-Bew VO, No. 22. For a different view, see: Nagel/Gottwald [14], para. 8, No. 124. 38Case C-325/11 Alder, EU:C:2012:824. 39For an analysis of the Alder case (and its consequences for the national, in casu Greek, civil procedure), see Anthimos [1], pp. 3Ð34. 40Cf. Bach [2], p. 833. Open issues concerning the non-mandatory character. . . the need to serve documents abroad) jeopardises a party’s right to be heard and therefore it cannot be regretted that such methods are no longer admissible. On the contrary, the possibility of the continued use of methods of, for example, summoning foreign witnesses to be heard in the court where proceedings on the merits are pending, as the CJEU convincingly explains, can add to the effectiveness of the taking of evidence and to the better procedural position of the parties.

8Finalremarks

So far, the CJEU has had surprisingly few opportunities to clarify issues concerning the application of the EER. According to the optimistic viewpoint, this is an indication that the system established by this Regulation functions smoothly. The pessimistic standpoint, however, would be that this is either an indication that the Regulation is rarely used or that numerous controversial issues have simply been overlooked. Thus, the application of the Regulation in Member States is perhaps either simply avoided or far from uniform. The judgments in Lippens and ProRail are true landmark decisions. In my opinion, also regarding the question of the non-mandatory nature of the EER as well as coercive measures, they are both convincing and welcome contributions to the development of EU law in the field of judicial cooperation as well as to a proper under- standing of what national sovereignty should mean in the still developing EU. It is true, as seen in Aguirre Zarraga, that the discretion of the judge in the court of origin as to whether to apply the EER or to simply summon persons residing abroad to appear in his or her court is not without risks. But it remains—as with all other cases of exercising judicial discretion—the task of the judge to strike a proper balance between the competing interests involved and to ensure that fundamental guarantees are not breached. Numerous controversial questions concerning the construction and application of the EER, however, remain. Thereby, it should be noted that the constant technical development as well as the changing perception of national sovereignty within the EU and its relation to individual human rights will inevitably have an impact on the future legal framework of the cross-border taking of evidence. As the law needs to keep pace with the changes in society, it would not necessarily be a surprise if even the standards that are considered uniformly settled and accepted today might be perceived in a totally different light in the future. In addition, due to the existing groundbreaking conceptual differences between the national laws of Member States concerning law of evidence, controversies and difficulties surrounding the cross-border taking of evidence are inevitable. This seriously diminishes legal certainty and predictability in this field of European civil procedure. It can be expected that the CJEU will sooner or later settle some of the questions discussed herein. Realistically however, the extent to which the CJEU can provide clarity and predictability in this area is necessarily rather limited. The EER namely refers to the national laws of the Member States when it comes to the method of taking of evidence, privileges and immunities, etc. It is not so much that the autonomous concepts of the EER are insufficiently clear, but rather that most difficulties in the application of the EER are on account of differences in national laws and emerge where often mutually incompatible national rules, A. Galicˇ principles, and concepts collide. And of course, the possibilities of the CJEU to clarify national laws are practically non-existent. Realistically, only an at least limited degree of unification of the law of evidence, on the EU level, would ensure sufficient clarity, predictability, and effectiveness in the cross-border taking of evidence.

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