The key witness to a delivery dispute now lives in Lyon, the goods were inspected in a warehouse near Rotterdam, and the case is pending before a court in Munich. Or a creditor suing a Polish buyer in Lisbon needs the testimony of the buyer's former sales manager, who has moved to Vienna. Cross-border litigation often turns on evidence that sits in another country, and for civil and commercial cases between EU Member States there is one instrument designed to reach it: Regulation (EU) 2020/1783 on the taking of evidence. It lets the court hearing the case either ask a court in the other Member State to take the evidence for it, or take the evidence itself, directly and usually by video, with the witness's cooperation.
This guide is written for parties to civil or commercial proceedings in an EU Member State whose evidence is in another Member State, for witnesses who are asked to give evidence in a case abroad, and for the advisers helping them. It follows the text of Regulation (EU) 2020/1783 of 25 November 2020 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters, which applies from 1 July 2022 (Article 35) and replaced Regulation (EC) No 1206/2001. Article numbers are those of the Regulation. Denmark does not take part in the Regulation and is not bound by it (recital 38).
What the Regulation covers, and who uses it (Articles 1 to 3)
Article 1(1) sets the scope: the Regulation applies in civil or commercial matters in which the court of a Member State, in accordance with its own law, requests either the competent court of another Member State to take evidence, or the taking of evidence directly in another Member State. The two routes described in this guide correspond to those two options. Article 1(2) adds a limit that matters in practice: a request may not be made to obtain evidence that is not intended for use in judicial proceedings that have already commenced or are being contemplated. The Regulation is a tool for litigation, not a general investigative power.
The requests are made by courts, not by the parties. A party who needs evidence abroad asks the court hearing its case to use the Regulation, and the court decides, applying its own procedural law, whether the evidence is relevant and admissible. The term court is defined broadly in Article 2(1): it covers courts and other authorities communicated to the Commission that exercise judicial functions, act under a delegation of power by a judicial authority or act under its control, and are competent under national law to take evidence in civil or commercial proceedings.
Under Article 3, requests of the first kind are transmitted directly by the court before which the proceedings are commenced or contemplated, the requesting court, to the competent court of the other Member State, the requested court. Each Member State draws up a list of the courts competent to take evidence under the Regulation, indicating their territorial and, where applicable, special jurisdiction. There is no diplomatic channel and no need for a ministry to forward the request.
The request, the forms and the language (Articles 5 to 8)
A request is made on form A in Annex I, or form L for direct taking of evidence (Article 5(1)). It states the requesting and requested courts, the names and addresses of the parties and their representatives, the nature and subject matter of the case with a brief statement of the facts, and a description of the evidence to be taken. Where a person is to be examined, it gives the person's name and address, the questions to be put or a statement of the facts on which the person is to be examined, any right to refuse to testify under the law of the requesting court's State, and any requirement that the examination be under oath or affirmation. For other evidence, it identifies the documents or objects to be inspected.
The request and its accompanying documents are exempt from authentication or any equivalent formality (Article 5(2)); no apostille is required. Documents that the requesting court considers necessary for the execution of the request must be accompanied by a translation into the language in which the request is written (Article 5(3)). Under Article 6 the request is drawn up in the official language of the requested Member State, or of the place where the evidence is to be taken if that State has several official languages, or in another language that the requested State has said it will accept. Language is therefore the first practical cost of a cross-border request, and it is borne before the request leaves.
Article 7 provides that requests and communications are transmitted through a secure and reliable decentralised IT system based on an interoperable solution such as e-CODEX, with qualified electronic seals or signatures usable instead of handwritten ones, and Article 8 provides that documents transmitted through that system may not be denied legal effect or considered inadmissible solely because they are electronic. Under Article 35(3), Article 7 applies from the first day of the month following three years after the entry into force of the implementing acts referred to in Article 25; where the system is disrupted, or the nature of the evidence or exceptional circumstances require it, the swiftest appropriate alternative means is used (Article 7(4)).
Route one: the court abroad takes the evidence (Articles 9 to 18)
Within seven days of receiving a request, the requested court sends an acknowledgement of receipt on form B; if the request does not comply with the language and transmission rules, it notes this in the acknowledgement (Article 9(1)). A court that receives a request it has no jurisdiction to execute forwards it to the competent court of its own State and informs the requesting court (Article 9(2)). If the request is incomplete, the requested court must say so without delay and at the latest within 30 days, on form D, specifying what is missing (Article 10(1)); the same 30-day rule applies where it asks for a deposit or advance towards an expert's costs (Article 10(2)). In those cases, the time limit for execution runs only from receipt of the completed request or of the deposit (Article 11).
The central rule is Article 12(1): the requested court executes the request without delay and, at the latest, within 90 days of receipt. It does so in accordance with its own national law (Article 12(2)), but the requesting court may ask for a special procedure provided for in its own law, and the requested court must comply unless that would be incompatible with its law or impossible because of major practical difficulties (Article 12(3)). The requesting court may also ask the requested court to use specific communications technology, in particular videoconferencing or teleconferencing, with the same limits (Article 12(4)). If the 90 days cannot be met, the requested court informs the requesting court on form J, stating the grounds and the time it expects to need (Article 17).
The parties and their representatives have the right to be present when the requested court takes the evidence if the law of the requesting court's State provides for it, and may be allowed to participate on conditions set by the requested court (Article 13). Representatives of the requesting court, including an expert it designates, may likewise be present and, where requested, participate (Article 14). Where necessary, the requested court applies coercive measures to the extent its own law provides for the same purpose in a domestic case (Article 15). Once the request is executed, the requested court sends the documents confirming execution with form K (Article 18).
Route two: the court takes the evidence itself, often by video (Articles 19 to 21)
Instead of asking a court abroad to act, the court hearing the case may take the evidence directly in the other Member State. It submits a request on form L to the central body or competent authority of that State (Article 19(1)). Direct taking of evidence may take place only if it can be carried out on a voluntary basis without coercive measures; where a person is to be examined, the requesting court must tell that person that the examination is voluntary (Article 19(2)). The evidence is taken by a member of the judicial personnel or another person, such as an expert, designated under the law of the requesting court's State, and in accordance with that law (Article 19(3) and (8)).
Within 30 days, the central body or competent authority informs the requesting court whether the request is accepted and on what conditions, using form M, and it may assign a local court to take part or to give practical assistance (Article 19(4) and (6)). If no answer arrives within 30 days of acknowledgement, the requesting court may send a reminder, and if there is no reply within 15 days of the acknowledgement of that reminder, the request is considered accepted, subject to exceptional circumstances (Article 19(5)). The request may be refused only if it falls outside the Regulation, lacks the information required by Article 5, or is contrary to fundamental principles of law in that State (Article 19(7)).
Article 20 makes video the default for witnesses in this route: where evidence is to be taken by examining a person present in another Member State and the court requests direct taking of evidence, it takes the evidence by videoconferencing or other distance communications technology, provided the technology is available to the court and the court considers it appropriate in the circumstances. The request is made on form N, the courts and authorities agree the practical arrangements, and the requesting court is helped to find an interpreter if needed. Separately, Article 21 allows Member States to provide in their law that their courts may ask their diplomatic agents or consular officers to hear their own nationals in another Member State, at the mission or consulate, voluntarily and without coercion.
Witnesses' rights and the limited grounds for refusal (Article 16)
A witness heard under the Regulation keeps the protections of two legal systems. Under Article 16(1), a request for the examination of a person is not executed where the person invokes a right to refuse to give evidence, or is prohibited from giving evidence, either under the law of the requested court's State, or under the law of the requesting court's State if that right or prohibition was specified in the request or has been confirmed by the requesting court. Professional secrecy, family relationships and privilege against self-incrimination therefore travel with the witness, and a party that expects them to be raised should make sure the request identifies them.
Apart from those rights, a requested court may refuse to execute a request only on the grounds listed in Article 16(2): the request falls outside the Regulation; its execution is not a judicial function in the requested State; the requesting court has not completed an incomplete request within 30 days of being asked; or a deposit or advance for an expert has not been made within 60 days of being requested. Under Article 16(3) a court may not refuse merely because, under its own law, another court of its State would have exclusive jurisdiction over the case or its law would not recognise the claim. A refusal must be notified within 60 days of receipt on form K (Article 16(4)).
| Question | Provision | Rule |
|---|---|---|
| Scope | Article 1 | Civil or commercial matters; evidence for proceedings commenced or contemplated; request by a court, not a party |
| Who sends and receives | Articles 2, 3 | Requesting court to requested court directly; each Member State lists its competent courts |
| Form and language | Articles 5, 6 | Form A (or L); no authentication; official language of the requested State or of the place, or an accepted language |
| Acknowledgement | Article 9 | Within 7 days on form B |
| Incomplete request | Articles 10, 11 | Notified within 30 days on form D; time runs from the completed request or the deposit |
| Execution | Articles 12, 17 | Without delay and at the latest within 90 days; special procedure or video on request; delay notified on form J |
| Presence of parties and court | Articles 13, 14 | If the requesting State's law provides; participation on conditions set by the requested court |
| Refusal | Article 16 | Right to refuse to testify under either law; otherwise only the four listed grounds; notified within 60 days |
| Direct taking of evidence | Articles 19, 20 | Form L to the central body; voluntary only; answer within 30 days; video by default for witnesses |
| Costs | Article 22 | No reimbursement as a rule; experts, interpreters, special procedure and technology may be charged; deposit only for experts |
Costs (Article 22)
As a rule, executing a request does not give rise to any claim for reimbursement of taxes or costs (Article 22(1)). By way of exception, the requested court may require reimbursement of fees paid to experts and interpreters and of costs caused by a special procedure or by communications technology requested under Article 12(3) and (4); the obligation of the parties to bear those costs is governed by the law of the requesting court's State (Article 22(2)). Where an expert opinion is needed, the requested court may ask for an adequate deposit or advance before executing the request; in all other cases a deposit or advance may not be a condition of execution (Article 22(3)).
For the parties, the real costs are usually translation of the request and supporting documents, interpreters for the hearing, experts, and lawyers in both States where local assistance is needed. Direct taking of evidence by video under Article 20 often reduces those costs, because the witness does not travel and the requesting court applies its own procedure, but it depends on the witness's willingness to cooperate.
Practical guidance
Plan the evidence early. Because requests are made by the court, a party should ask for a cross-border request as soon as the need for the evidence is clear, with a draft of the questions or the statement of facts, the witness's address and any privilege the witness may invoke. A precise request is executed faster and is less likely to come back as incomplete under Article 10.
Choose the route deliberately. If the witness is willing, direct taking of evidence by video under Articles 19 and 20 keeps the examination in the hands of the court that will decide the case and under its procedure. If the witness is reluctant, or documents or objects must be produced under compulsion, a request to the court abroad under Article 12 is the route that allows coercive measures under that State's law (Article 15).
Budget for language. The request must be in the language required by Article 6, and supporting documents must be translated into the language of the request (Article 5(3)). Interpreters at the hearing are an additional cost, which the requested court may charge under Article 22(2).
If you are the witness, read the letter carefully. A summons from a court in your own State executing a foreign request is a domestic summons, backed by that State's coercive measures. A request to take part in a direct examination by a foreign court is voluntary under Article 19(2), and the court must tell you so. In either case, you may invoke the right to refuse to give evidence under your local law or under the law of the requesting court if it has been specified, as Article 16(1) provides.
Keep the timetable in view. The requested court has 90 days from receipt of a complete request (Article 12(1)); the central body has 30 days to answer a direct-evidence request (Article 19(4)). Calendar these dates and ask the court hearing your case to follow up with a reminder if they pass.
Frequently asked questions
Can I, as a party, send a request for evidence directly to a court in another EU country?
No. The Regulation operates between courts. A party asks the court hearing its case to issue the request, and that court decides under its own procedural law whether the evidence is needed. The court then sends the request directly to the competent court abroad (Article 3) or, for direct taking of evidence, to the central body or competent authority of the other State (Article 19).
How long does the court abroad have to take the evidence?
The requested court must execute the request without delay and at the latest within 90 days of receipt (Article 12(1)). If the request was incomplete or an expert deposit was requested, the time runs from receipt of the completed request or of the deposit (Article 11). If the court cannot meet the deadline, it must inform the requesting court on form J with the reasons and the expected time (Article 17).
Can a witness in another Member State be heard by video?
Yes. Where the court requests direct taking of evidence and a person in another Member State is to be examined, Article 20 provides that the court takes the evidence by videoconferencing or other distance communications technology, provided the technology is available and the court considers it appropriate. Direct taking of evidence is voluntary: the witness must be told so and no coercive measures may be used (Article 19(2)). A court may also ask the requested court to use videoconferencing when that court takes the evidence (Article 12(4)).
Can a witness refuse to answer?
Yes, where the witness has a right to refuse to give evidence or is prohibited from giving evidence under the law of the requested court's State, or under the law of the requesting court's State if that right was specified in the request or confirmed by the requesting court (Article 16(1)). In direct taking of evidence the witness takes part only voluntarily (Article 19(2)).
On what grounds can a court abroad refuse to execute a request?
Apart from the witness's right to refuse, only on the grounds in Article 16(2): the request falls outside the Regulation, execution is not a judicial function in that State, an incomplete request was not completed within 30 days of being asked, or an expert deposit was not paid within 60 days. A court may not refuse because its own courts would have exclusive jurisdiction or its law would not recognise the claim (Article 16(3)).
Does the Regulation apply to Denmark?
No. Denmark did not take part in adopting Regulation (EU) 2020/1783 and is not bound by it or subject to its application (recital 38). Evidence in Denmark is obtained through other instruments or arrangements.