EVIDENCE AND THE PRINCIPLE OF PROPORTIONALITY. HOW TO GET RID OF EXPENSIVE AND TIME-CONSUMING EVIDENCE?

Summary

Introduction

European civil procedural law deals with the taking of evidence in civil matters only marginally. Admittedly, cooperation in the taking of evidence is among the areas that may be subject to measures adopted by the European legislators. But in the context of evidence-taking, ‘cooperation’ and ‘harmonization’ are two rather different, and sometimes contradictory concepts. As initially stated in the now almost 15–year-old EU instrument regarding the taking of evidence in civil and commercial matters, the aim of the Regulation was to ‘improve, simplify and accelerate cooperation’, and to ‘make [it] easier to take evidence in another Member State’. Yet, the very core of the evidence-taking – who (and when and how) has to select, present and assess the evidence – was left untouched.

Moreover, in line with the principles of subsidiarity and proportionality entrenched in the EU Treaty, the European legislators cannot go beyond what is absolutely necessary to achieve the imminently set objective, i.e. to improve the cooperation between the national courts of different European jurisdictions. Whether these courts have diametrically opposite approaches and rules to evidencetaking, from the EU law perspective it does not matter. As, allegedly, the desired objective of facilitating judicial cooperation has largely been achieved, no further actions that would go beyond the friendly cross-border judicial assistance between courts and promotion of mutual knowledge of different evidence-taking systems in the EU countries are either desired or permissible.

Is this really the case? Can cooperation be successful within the ‘common area of justice’ if the practices of the taking of evidence in civil and commercial cases are exceedingly different and are rooted in different rationales and different core practices? In this text, I will argue that if a ‘common area of justice’ is to be taken seriously, some harmonization in the approach to the taking of evidence is indispensable.

The developments regarding the taking of evidence conform to the wider trends of convergence triggered by the change in the setting of the goals of civil litigation. In all recent reforms, the key is the principle of proportionality. In the context of evidence-taking, the principle of proportionality, when properly understood and accepted, may prompt far-reaching changes – in particular where the principle of proportionality was largely unknown in the field of civil procedure.