Taking of Evidence

Education

1983-87 Law studies at the University of Graz

1988-89 European law studies at the University of Saarbrucken

1990-92 Law Doctorate studies at Graz; dissertation entitled Trans-boundary pollution in private international law'

Professional appointments

1986-88 Research Assistant at the Institute of Civil Law at the University of Graz

1988-89 Research Assistant, Chair of Comparative Law, European Law and Commercial Law at the University of Saarbrucken

1989-92 University Assistant at the Institute of Civil Law, University of Graz

1992-95 Trainee lawyer/trainee judge in the area under the jurisdiction of the Higher Regional Court in Graz

1995-2001 District Court Judge for civil law cases in Graz and District Court Judge in Stainz

2001-02 Regional Court Judge for civil law cases in Graz

Since 2003 Higher Regional Court Judge in Graz (member of the Regional Court Civil Division)

Since 1997 In addition to his work as a judge, he has contributed to Federal Ministry of Justice projects in the field of international civil procedural law, participating, in particular, in European Union working parties (Committee on Civil Law Matters) and the Hague Conference on Private International Law

1. General

1.1. Objective of the Regulation

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 1 is based on an initiative by the Federal Republic of Germany 2. That initiative was originally simply an attempt to modernise the provisions of the Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters 3. In particular, it was planned to introduce standard forms and considerably facilitate direct business between courts. This was designed to avoid the delays which often result from involvement of central transmitting and receiving bodies. It was, however, otherwise intended to retain the traditional approach to the taking of evidence in mutual legal assistance. The taking of evidence was to have been performed at the request of the court for whose proceedings the taking of evidence is required (requesting court) by a court of the State in which the evidence is to be taken (requested court). The requested court would, in principle, have had to apply its own procedural law. The requesting court would, however, have been entitled to be present through representatives at the taking of evidence but there was no provision for that court itself to take evidence a broad.

In the final version of the regulation, this traditional approach is retained as one of the possibilities (Articles 4 to 16). The courts of the Member States 4 are, however, in addition given the possibility, in accordance with their own procedural law, of also directly taking evidence in another Member State (Article 17). This is not just a simplification of the traditional forms of taking evidence, but constitutes the crucial improvement brought about by the regulation in comparison with the legal provisions hitherto applicable under international treaties. Such direct taking of evidence a broad had hitherto usually come to nothing because of sovereignty reservations on the part of the States concerned.

1.2. General Provisions

1.2.1. Scope

According to Article 1(1) of the regulation, it shall apply in civil or commercial matters. This position is not clarified further; interpretation is to depend on the case-law of the Court of Justice of the European Communities relating to Article 1(1) of the Brussels Convention 5. That case-law does not allow any reverting to the substantive or formal law applicable; the concept should rather be interpreted independently 6. The scope of the regulation is, it is true, not entirely the same as that of the Brussels Convention or Regulation (EC) No 44/2001 (Brussels I Regulation) which replaces it 7, but, provided a civil or commercial matter is involved, also covers subjects which are excluded from the Brussels Convention and Brussels Regulation by Article 1 (2) thereof.

Since the regulation makes no distinction between individual types of proceedings, it is to be applied not only in contested civil proceedings but also in all other civil court proceedings, for example voluntary jurisdiction (uncon-tested proceedings) and insolvency proceedings.

According to Article 1(1) of the regulat...

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