The CJEU has already confirmed that the European Evidence Regulation
(EER) is not of a mandatory character and that a court may rely on its national law
in order to obtain evidence located abroad. Nevertheless, numerous dilemmas still
exist. In the author’s view the CJEU’s findings in regard to the parties examined
as witnesses can be extended to proper witnesses although this is still controversial
concerning the question whether coercive measures may be used. The author is also of
the opinion that it is not possible to organise cross-border videoconferences without
resort to the EER, and finds it questionable whether a videoconference with a party
located abroad, but not for purposes of taking evidence, falls within the scope of the
EER. Finally, the problem is addressed as to whether the fair trial requirements oblige
the court to apply the other available methods of cross border taking of evidence if
the first chosen method fails.

EB00000004096K

Available

• Open issues concerning the non-mandatory character of the Cross-Border Taking of Evidence Regulation