As of July 1, 2022, the new Regulation (EU) 2020/1783 of November 25, 2020, on cooperation between the courts of the Member States in the field of evidence gathering in civil and commercial matters applies, replacing the functioning and application of Regulation (EC) No. 1206/2001. In this article, we will examine the updated introductions aimed at facilitating and strengthening cross-border cooperation between states in the area of evidence gathering in European civil and commercial matters.

Due to the dynamic nature of the procedure for collecting various types of evidence and the need to simplify it, Regulation No. 1206/2001 was amended several times to synchronize the exchange of documents in practice. Although it provides a significantly simpler way to ascertain the objective truth in civil and commercial matters with international relevance through a direct, non-arbitrary connection between the courts of the Member States, Bulgarian courts have still applied it very cautiously. The reasons for this include, among others, the lack of clarity on how to proceed on a purely procedural basis, the fact that the Regulation does not exclude the general rules of evidence in the Bulgarian Civil Procedure Code, and the obligation of the court under Article 11 of the CPC, which stipulates the principle of immediacy of the proceedings. For example, this principle requires the judge to gain an immediate visual impression when recording witness statements. However, doubts about the application of the Regulation are unfounded, as its advantages in the 20 years it has been in force are undeniable, and it has contributed to creating a unified area of law and security under Article 3(2) of the Treaty on European Union (TEU) and Article 67 of the Treaty on the Functioning of the European Union (TFEU).

Following an analysis and evaluation by the European Commission, it was found that improvements in the area of cross-border evidence gathering and the use of new technologies in communication between courts were necessary. This led to the adoption of the new Regulation (EU) No. 1783/2020, which aims to repeal the existing provisions. The Regulation applies to all Member States, including Ireland. Denmark is not bound by its application, and the Hague Convention of 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters applies between Denmark and the other Member States.

In addition to the dynamics of the civil process, which follows its natural, contemporary development, the new regulations were introduced in two other independent areas. On the one hand, they became indispensable due to the remote and global situation related to COVID-19. On the other hand, they were preferred primarily for reasons of time and cost savings, as it often happened that the requested court complied with the statutory deadline of 90 days, but the collected evidence did not reach the requesting court before the hearing date for purely technical reasons, such as delays in postal delivery or the lack of completion of the translation of documents into the official language of the requesting state. This, in turn, led to the adjournment of the case to a new public hearing date for their admission and de facto delayed the main proceedings.

Regulation (EC) 2020/1783 simplifies procedures through the use of standard forms. The requirements for the form, content of the request, and language (Articles 5 and 6) are retained, and certification of the translation is not required. However, there are changes in the communication between the applicant and the requested court, which was previously mainly in paper form. The new Regulation emphasizes digitalization and electronic exchange of documents to achieve speed and efficiency. The new rules provide that this is to be done through a decentralized system, with a qualified electronic signature (QES) replacing the seal and signature of the authority. It is explicitly stated that the legal validity and admissibility of documents transmitted via the decentralized information system as evidence in a proceeding cannot be disputed or refused solely because they are in electronic form. The old method of exchange is retained as an alternative in case a technical malfunction of the system makes transmission difficult—Article 7(4) of the Regulation provides that in such a case, transmission shall be made “in the fastest and most suitable alternative way.”

The principle that a received request should be confirmed within seven days is retained. If the request is incomplete or a deposit or advance payment is required, the requested court has 30 days to inform the applicant. There are also no substantive changes to the limited grounds for refusing to execute the decision.

The procedure provided in the repealed Regulation should ensure that evidence is collected within a reasonable time in two ways, depending on which court carries out the collection—when the competent court of another Member State supports the applicant in collecting evidence in its territory or when it collects evidence directly in the requested state.

In the case where the competent court of another Member State is to collect evidence, the requesting court must submit an appropriate application using Form A of the Regulation. According to Article 12, the requested court processes the request promptly, but no later than 90 days after receipt. The deadline remains as in the old Regulation. Although it was sometimes extremely insufficient in some cases, this was mainly due to the process for receiving, transmitting, and incorporating the evidence into the proceedings (e.g., translation of documents). Some of these obstacles may now be accelerated through the electronic exchange of documents. The procedure for direct evidence collection by the requesting court is supplemented in Article 19(5) of the Regulation by introducing the possibility of a reminder procedure. The idea is that these cases generally concern securing evidence, and speed is of the essence.

The alternative option of direct evidence collection by the requesting court in the territory of another Member State requires prior approval by a competent authority of the other Member State. For this purpose, each state must designate a central authority, which is obliged to inform the courts and offer solutions to difficulties with the request—this may be a court member or another expert. Evidence collection in this case is only possible voluntarily and if it is technically feasible; the use of coercive measures is not permitted. For example, if a witness hearing is required and the requesting court obtains permission to collect evidence directly in the territory of the requested Member State, this is done via videoconferencing or other remote communication techniques, provided the court has the technology and deems its use appropriate under the specific circumstances of the case. The old Regulation also provided for the possibility of videoconferencing and teleconferencing, with the requested court obliged to comply with such a request, regardless of whether it was compatible with the law of the respective Member State or caused significant practical difficulties; however, no exact procedure was provided. Such requests were often denied—France, for instance, is among the countries that do not use many of the applications for videoconferencing, and Portuguese courts have limited access to private connections. Article 20 of the new Regulation clarifies the procedure using a specific form, and the provision of an interpreter, if necessary, is guaranteed as a safeguard. This provision outlines some of the most interesting points in applying the Regulation.

According to the Civil Procedure Code, requests from another Member State for evidence collection in the Republic of Bulgaria are addressed to the district court in whose district the evidence collection is to take place. The district court in whose district the immediate evidence collection is to take place is competent to authorize immediate evidence collection in the Republic of Bulgaria (Article 617 CPC).

A novelty is the possibility of evidence collection by diplomatic representatives or consular officers. This is done without prior request under Article 17(1). The collection is carried out by diplomatic representatives or consular officers in the territory of another Member State and in the area for which they are accredited. This possibility is based on voluntariness, and coercive measures may not be applied.

The focus of the new Regulation is on the electronic exchange of documents using modern telecommunication technology. The idea is that both the exchange of documents and the communication between the authorities involved in the procedure should take place via a secure and reliable decentralized information system that also includes national information systems that are interconnected and technically interoperable. The European Commission is responsible for creating, maintaining, and further developing a model software for networking, which Member States can use as a support system instead of a national information system. The establishment, maintenance, and further development of the model software application for interconnection will be funded from the Union’s overall budget. However, each Member State funds the establishment, operation, and maintenance of its access points, which connect the national information systems within the decentralized information system.

The rule is also retained that no fees or expenses may be charged for executing a request for evidence collection. The term “fees” refers to amounts charged by the court for carrying out its activities, while “costs” refers to amounts paid by the court to third parties, namely experts or witnesses, during the proceedings. The obligation of the parties to bear fees or costs depends on the law of the Member State of the requesting court in the main proceedings pending before it. This is because evidence collection does not result in a decision with a judicial character but is itself a procedure aimed at issuing a decision with a judicial character. It is possible for the court to require a deposit or advance payment if an expert is to be tasked with collecting evidence. The Regulation explicitly excludes this possibility as a prerequisite for executing a request for evidence collection.

The practical challenges of implementing the Regulation have not yet been overcome. According to Article 35 (3) of the Regulation, the transmission of communications via the secure decentralized system applies from the first day of the month following the expiration of the three-year period after the adoption of the implementing acts referred to in Article 25, which the European Commission issues, practically in the second half of 2025.