The Production of Evidence within the European Community
| DOI | http://doi.org/10.1111/j.1468-2230.1993.tb02677.x |
| Published date | 01 May 1993 |
| Date | 01 May 1993 |
| Author | Wendy Kennett |
77ze
Modern
Law
Review
[Vol.
56
The Production
of
Evidence within the
European Community
Wendy
Kennett*
Introduction
The purpose of this article is to consider how far the present arrangements for
obtaining evidence abroad within the European Community are satisfactory in the
context of an increasing amount of European litigation and greater restrictions on
choice of jurisdiction. The European Community provides an example of dramatic
political and social change which has already led to modification of some areas of
civil procedure, and may be a catalyst for more radical changes. It is trite to point
out that the European Community has had a much wider impact than was anticipated
in the early days of its existence. Although it was assumed initially that national
private and procedural laws would be unaffected by membership of the Community,
increasingly European law has had an impact on these areas of domestic law. The
Treaty of Rome required Member States of the Community to enter into negotiations
to secure the simplification of formalities governing the recognition and enforcement
of judgments’
-
a requirement that led to the negotiation of the
1968
Brussels
Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commer-
cial Matters (the Judgments Convention)
-
but there is
no
mention in the Treaty
of any further harmonisation
of
civil procedure. As transnational business activity
expands, however, the potential obstacles created by conflicting national rules have
become more obvious, leading to calls from some quarters for harmonisation of
broad areas of private and procedural law.* Two areas which have attracted parti-
cular attention are the law of contract
-
in order to facilitate European commercial
transactions
-
and the law of civil procedure.
For
a number of years the European
Commission
has
been supporting private initiatives to examine the viability of
harmonisation in these areas and to prepare common principles that could form the
basis for harmonisation
-
perhaps through the enactment of regulations
or
the use
of Model Laws.3
Pressure for change is also likely to increase as a result of the ‘Europeanisation’
of law teaching that one might expect to flow from the various conferences on the
*New Hall, Cambridge.
1
Article
220
EEC. The Article also mentions arbitration awards, but it was thought that the
1958
New
York
Convention had achieved a satisfactory degree of simplification in this area.
2
See in particular the European Parliament’s Resolution on Action to Bring Into Line the Private Law
of the Member States,
OJ
1989
C158/400.
3
The Commission on European Contract Law was formed in
1980
with the objective
of
drafiing a
set of general Principles of Contract Law to serve as the basis for a European Code of Contracts
(the Lando Commission). In
1987
the Commission on European Civil Procedure was established (the
Stone Commission).
For
recent discussion of the work of these Commissions,
see
Lando, ‘Principles
of European Contract Law: An Alternative
or
a
Precursor
of European Legislation’
(1992)
56
RabelsZ
261,
and Storme,
‘Rechtsvereinheitlichung
in Europa: Ein Pladoyer
fir
ein einheitliches europaisches
ProzeRrecht’
(1992) 56
RabelsZ
290.
@
The Modern Law Review Limited
1993
(MLR
56:3,
May). Published by Blackwell
Publishers,
108
Cowley Road, Oxford
OX4
1JF
and
238
Main Street, Cambridge,
MA
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USA.
342
0
The
Modern
Law Review
Limited
1993
May
19931
The Production
of
Evidence within the European Communiry
subject of European legal education that have taken place re~ently.~ The confer-
ences reflect both the greater importance of understanding other European legal
systems following the completion of the single market, and the increasing oppor-
tunities for lawyers to establish themselves
or
provide services in the European
country of their choice.5 Lawyers who have been introduced to the structures and
methodology of more than one legal system during their legal education may be
more prepared to accept change
as
a rational development: seeing it as a development
within a nexus of systems, rather than as an imposition from without.
It should also be borne in mind that other international instruments also regulate
issues of civil procedure within Europe, in particular the Hague Conventions on
Service of Documents Abroad and Obtaining Evidence Abroad. Taken together
with the Judgments Convention and the Lugano Convention,‘j these have been
said to form the nucleus of a newly emerging ‘European Uniform Law of Civil
Procedure. However, non-EEC conventions cannot be interpreted by the Euro-
pean Court,
so
that many differences
of
interpretation remain. Furthermore, the
utility of such conventions is reduced by virtue of the fact that they have to be
acceptable to states which have no incentive to make the kind of significant
compromises that occur within the European legislative process.
The problems of obtaining evidence abroad are of interest for several reasons.8
First, the fact that there was international support for negotiating a convention on
obtaining evidence abroad within the framework of the Hague Conference demon-
strates the significance of the subject.9 If there is to be harmonisation extending
beyond the Judgments Convention, the rules on obtaining evidence are an obvious
target. Second, and following on from this, it is necessary to determine whether
the existence of the Hague Convention, in spite of its limitations, obviates the need
for legislation or other steps toward harmonisation within the European Community
itself. Third, the problem is a particularly thorny one because of the contrasting
approaches to proof-taking that exist within Member States of the Community. The
issues to be considered in the following pages are therefore, on the one hand, what
mechanisms for obtaining evidence within Europe currently exist and, on the other,
how far disparities in national laws relating to obtaining evidence indicate that
harmonisation may be desirable: and what steps might be taken to that end.
4
eg Conference on ‘Legal Education in the Future’ in September
1991
at the Rijksuniversiteit Limburg
in Maastricht (for the proceedings,
see
De Witte and Forder (eds), ‘The Common Law of Europe
and the Future of Legal Education’ (Kluwer,
1992)); 1992
SPTL Conference on ‘The European Law
School’; Conference at the European Court of Justice in Luxembourg in Spring
1990.
5
Free movement of lawyers within Europe has begun to emerge as a real possibility in the wake of
Directive
89/48
on Recognition of Diplomas and recent cases such as
Vlassopoulou
(Case
C340/89,
[1991]
ECR
1-23571.
The Directive sets out the circumstances in which a lawyer trained in one
jurisdiction may be able to use his qualifications as the basis for applying to practice in a different
European jurisdiction.
Vlassopoulou
achieves a similar result in circumstances in which the Directive
does not apply. Although it is necessary to prove an adequate knowledge of the law of the jurisdiction
in which the applicant wishes to become established, the Directive and the new line of case law mean
that it is unnecessary to
go
through the whole process of requalifying in that State.
6
A convention ‘parallel’ to the Judgments Convention which extends its principles to litigation within
the ‘European Economic Area’ of EC and EFTA countries.
7
Volken, ‘The Lugano Convention in the Framework of Legal Unification in Europe’ in Carpenter,
Haymann, Hunter-Tilney and Volken (eds), ‘The Lugano and San Sebastian Conventions’ (London:
Butterworths,
1990) 5.
8
The present author has previously considered some of the difficulties arising from reliance on the
1965
Hague Convention on Service of Documents Abroad as the sole ‘harmonising’ instrument in
European litigation:
(1992) 11
CJQ
115.
9
Although admittedly the particular conflicts caused by the US approach to discovery were an important
factor here.
343
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The
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1993
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