CHAPTER IITRANSMISSION AND EXECUTION OF REQUESTS
SECTION 3 Taking of evidence by the requested court
Article 12General provisions on the execution of a request
1.
The requested court shall execute the request without delay and, at the latest, within 90 days of receipt of the request.
2.
The requested court shall execute the request in accordance with its national law.
3.
The requesting court may call for the request to be executed in accordance with a special procedure provided for in its national law, using form A in Annex I. The requested court shall execute the request in accordance with the special procedure unless doing so would be incompatible with its national law or it is unable to do so because of major practical difficulties. If the requested court does not comply with the call for the request to be executed in accordance with a special procedure for one of those reasons, it shall inform the requesting court using form H in Annex I.
4.
The requesting court may ask the requested court to use specific communications technology in the taking of evidence, in particular by using videoconferencing or teleconferencing.
The requested court shall use the communications technology specified pursuant to the first subparagraph unless doing so would be incompatible with its national law or the requested court is unable to do so because of major practical difficulties.
If the requested court does not use the specified communications technology for one of those reasons, it shall inform the requesting court using form H in Annex I.
If the communications technology referred to in the first subparagraph is not available in the requesting or in the requested court, those courts may make such communications technology available by mutual agreement.
Article 13Taking of evidence with the presence and participation of the parties
1.
If the law of the Member State of the requesting court so provides, the parties and their representatives, if any, shall have the right to be present at the taking of evidence by the requested court.
2.
In its request, the requesting court shall inform the requested court, using form A in Annex I, that the parties and their representatives, if any, will be present and, where appropriate, that their participation in the taking of evidence is requested. This information may also be given at any other appropriate time.
3.
If the participation of the parties and their representatives, if any, is requested in the taking of evidence, the requested court shall determine the conditions under which they may participate, in accordance with Article 12.
4.
The requested court shall notify the parties and their representatives, if any, of the time and the place where the taking of evidence will take place and, where appropriate, of the conditions under which they may participate in the taking of evidence, using form I in Annex I.
5.
Paragraphs 1 to 4 are without prejudice to the ability of the requested court to request the parties and their representatives, if any, to be present at or to participate in the taking of evidence if provided for by the law of its Member State.
Article 14Taking of evidence with the presence and participation of representatives of the requesting court
1.
Where compatible with the law of the Member State of the requesting court, representatives of the requesting court shall have the right to be present in the taking of evidence by the requested court.
2.
For the purposes of this Article, the term ‘representative’ includes judicial personnel designated by the requesting court in accordance with its national law. The requesting court may also designate any other person, such as an expert, in accordance with its national law.
3.
In its request, the requesting court shall inform the requested court, using form A in Annex I, that its representatives will be present and, where appropriate, that their participation in the taking of evidence is requested. This information may also be given at any other appropriate time.
4.
If the participation of the representatives of the requesting court is requested in the taking of evidence, the requested court shall determine, in accordance with Article 12, the conditions under which they may participate.
5.
The requested court shall notify the requesting court of the time and the place where the taking of evidence will take place and, where appropriate, of the conditions under which its representatives may participate in the taking of evidence, using form I in Annex I.
Article 15Coercive measures
Where necessary, in executing a request the requested court shall apply the appropriate coercive measures in the instances and to the extent as are provided for by the law of the Member State of the requested court for the execution of a request made for the same purpose by its national authorities or one of the parties concerned.
Article 16Refusals to execute requests
1.
A request for the examination of a person shall not be executed where the person concerned invokes the right to refuse to give evidence or is prohibited from giving evidence:
(a)
under the law of the Member State of the requested court; or
(b)
under the law of the Member State of the requesting court, and such right or prohibition has been specified in the request, or, if necessary, at the instance of the requested court, has been confirmed by the requesting court.
2.
The execution of a request may only be refused on grounds other than those referred to in paragraph 1, where one or more of the following grounds applies:
(a)
the request does not fall within the scope of this Regulation;
(b)
the execution of the request does not fall within the functions of the judiciary under the law of the Member State of the requested court;
(c)
the requesting court does not comply with the request of the requested court to complete the request for the taking of evidence pursuant to Article 10 within 30 days of the requested court asking it to do so; or
(d)
a deposit or advance asked for in accordance with Article 22(3) is not made within 60 days of the requested court asking for such a deposit or advance.
3.
A requested court shall not refuse to execute a request solely on the ground that under its national law another court of that Member State has exclusive jurisdiction over the subject matter of the case or that the law of that Member State would not admit the right of action on the subject matter.
4.
If the execution of a request is refused on one of the grounds referred to in paragraph 2, the requested court shall notify the requesting court thereof within 60 days of receipt of the request by the requested court using form K in Annex I.
Article 17Notification of delay
If the requested court is not in a position to execute the request within 90 days of receipt of the request, it shall inform the requesting court thereof using form J in Annex I. When it does so, it shall give the grounds for the delay as well as the estimated time it expects it will need to execute the request.
Article 18Procedure after the execution of the request
The requested court shall send to the requesting court the documents confirming the execution of the request, without delay and, where appropriate, shall return the documents received from the requesting court. Those documents shall be accompanied by a confirmation of execution using form K in Annex I.