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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 as a guarantee of the right to effective judicial protection

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 (hereinafter: the Regulation 1206/2001) is a part of procedural legislation with the aim of ensuring that the transmission and execution is to be made directly and by the most rapid means possible between Member States’ courts and contributing to the efficiency of judicial procedures in civil or commercial matters. At the same time, the Regulation 1206/2001, as well as other EU instruments containing measures relating to judicial cooperation in civil matters, should be observed and understood in the broader context than that set out by its aim. Thus, the paper presents a judgment of the German Constitutional court from 14 September 2015 concerning violation of the right to effective judicial protection due to the Municipal court’s failure to use possibilities available through the application of the Regulation 1206/2001 in order to investigate and establish the facts of the case that have good prospects of success. Namely, the decision of the German Constitutional court raises a number of questions relating to the application of specific institutionalised facilities and measures of assistance of complementary character to the Regulation 1206/2001 which should be taken into account by a judge when deciding in a cross-border case. Also, it suggests that a reference for preliminary ruling to the CJEU should have been made by the German Municipal court. The paper questions to what extent the new regime of taking evidence presents not only an instrument with an aim to make easier taking evidence in another Member State but another sophisticated EU instrument with an objective to contribute to harmonization of standards of procedural guarantees in Member States.

Regulation 1206/2001 ; taking of evidence ; judgment ; German Constitutional court ; procedural guarantees

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