1 Is it possible for evidence to be taken by videoconference either with the participation of a court in the requesting Member State or directly by a court of that Member State? If yes, what are the relevant national procedures or laws that apply?
Yes. Under Articles 10 and 12 of Regulation (EC) No 1206/2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters, if the court of the requesting Member State asks, using Form A in that Regulation, for evidence to be taken by the competent French court, it may be present when evidence is taken. This is allowed under Article 12 of the Regulation and Article 741 of the French Code of Civil Procedure (Code du Procédure Civile). There is therefore nothing to prevent the requesting court from asking to be present by videoconference, as long as the necessary equipment is available and the limits and conditions laid down by the French judge tasked with taking evidence are respected.
Under Article 17 of Regulation (EC) No 1206/2001, the court of the requesting Member State may ask, using Form I in that Regulation, for the French central body’s authorisation to examine a witness directly by videoconference.
2 Are there any restrictions on the type of person who can be examined by videoconference – for example, is it only witnesses or can others such as experts or parties also be examined in this way?
Anyone (whether a witness, an expert or a party) may be examined by videoconference if, and only if, French law recognises the hearing as a measure for the taking of evidence. This means that it must relate to precisely determined events or matters, which must be mentioned in the authorisation request submitted using Form I. It is therefore not permitted that the entire hearing before the requesting court take place by videoconference.
3 What restrictions, if any, are there on the type of evidence that can be obtained by videoconference?
Videoconferences may only be used for examining people. Documents cannot be submitted by videoconference, nor can the certification of documents following visual inspection take place by videoconference.
4 Are there any restrictions on where the person should be examined by videoconference – i.e. does it have to be in a court?
For requests submitted under Articles 10 to 12 of Regulation (EC) No 1206/2001 using Form A in that Regulation – that is, requests for the person in question to be examined by the French court with territorial jurisdiction, where the court of origin wishes to attend the hearing – the person to be examined must be on the premises of the relevant French court.
For requests to take evidence directly under Article 17, there are no such restrictions. In principle, when it gives its authorisation, the French central body provides the contact details of the ordinary court (tribunal judiciaire) with territorial jurisdiction that will assist the requesting court, this assistance being limited to the practical arrangements for organising the videoconference. However, there is nothing to prevent the requesting court from designating the place where the person is to be examined, as long as the place has been identified in advance and the parties and/or the person to be examined agree. All of this must be included in the authorisation request that is submitted using Form I.
It is always the exclusive responsibility of the requesting court to contact the ordinary court or establishment where the person must go to be examined. Once the French central body has given its authorisation, it will not intercede with this court or establishment in any way.
5 Is it permitted to record videoconference hearings and, if so, is the facility available?
For requests under Articles 10 to 12 of the Regulation, the requesting court asking to be present by videoconference when the requested French court examines the witness may also ask, in Form A, that the hearing be transcribed or recorded as permitted by Article 739 of the French Code of Civil Procedure.
For requests under Article 17, nothing prevents the court of the requesting Member State from asking, in Form I, that the hearing be recorded if its legislation provides for this, as long as the person to be examined is notified of this in advance. In any event, for hearings conducted directly by videoconference, the requesting court is solely responsible for the practical and technical arrangements for recording the hearing. This means that any French court assisting the requesting court with the organisation of the videoconference will not record the videoconference.
6 In what language should the hearing be conducted: (a) where requests are made under Articles 10 to 12; and (b) where there is direct taking of evidence under Article 17?
(a) In principle, the hearing is conducted in French. However, there is nothing to prevent the French judge presiding over the hearing from holding it in another language that both they and the person to be examined understand.
(b) The hearing is conducted in the language chosen by the court in the requesting Member State. If necessary, an interpreter is used.
7 If interpreters are required, who is responsible for providing them under both types of hearing and where should they be located?
For requests under Articles 10 to 12 of the Regulation, the interpreters will be appointed by the requested French court and will be located at that court. They may also be provided by the requesting court, where the latter wishes to attend the hearing by videoconference, as long as this has been mentioned in Form A and the French judge tasked with conducting the hearing agrees. All interpreting costs, including any travel costs, are borne exclusively by the requesting court, as set down in Article 748 of the French Code of Civil Procedure.
For requests to take evidence directly under Article 17 of the Regulation, the interpreters will be provided by the requesting court. Nothing prevents them from being located in the same place as the person to be examined. Again, any travel costs incurred by the interpreters will be borne exclusively by the requesting court.
8 What procedure applies to the arrangements for the hearing and to notify the person to be examined about the time and place? How much time should be allowed when arranging the date of the hearing to enable the person to receive sufficient notification?
For requests made under Articles 10 to 12, the requested French court will summon the person to be examined. It will do this in accordance with French law. If the requesting court has asked to attend the hearing, the French court will notify it of the hearing date in accordance with Article 741 of the French Code of Civil Procedure.
For requests made under Article 17, the requesting court is solely responsible for summoning the person to be examined. It will do this after agreeing the date and time of the videoconference with the relevant department of the ordinary court assisting it with the organisation of the videoconference, the contact details of which will be included in the authorisation issued by the French central body. Under no circumstances will the French court or the French central body summon the person.
9 What costs apply to the use of videoconferencing and how should they be paid?
Under Article 748 of the French Code of Civil Procedure, the costs will be borne exclusively by the requesting court that has asked either to attend the French court’s hearing by videoconference or to conduct the hearing directly by videoconference. It is therefore up to the requesting court to contact the requested French court based on the practical information provided by this court, in the first case, or by the French court assisting the requesting court, in the second.
10 What requirements, if any, are there for ensuring that the person examined directly by the requesting court has been informed that the performance shall take place on a voluntary basis?
When a requesting court asks to examine a person directly by videoconference, it is responsible for summoning that person. It is therefore up to the requesting court to inform the person that the hearing is being conducted on a voluntary basis.
11 What procedure exists for verifying the identity of the person to be examined?
The person must show an identity document.
12 What requirements for taking oaths apply and what information is needed from the requesting court when an oath is required during direct taking of evidence under Article 17?
For requests made under Articles 10 to 12, the requirements are those laid down in French law unless the requesting court has asked, in Form A, to apply the requirements laid down in its own national law. These requirements can only be applied if they are compatible with French public order within the meaning of Articles 739 and 743 of the French Code of Civil Procedure.
For requests to take evidence directly by videoconference under Article 17, the requirements for taking oaths are those laid down by the law of the requesting court.
13 What arrangements are there for ensuring that there is a contact person at the place of the videoconference with whom the requesting court can liaise and a person who is available on the day of the hearing to operate the videoconferencing facilities and deal with any technical problems?
For requests to take evidence directly by videoconference under Article 17, the French central body provides, in the authorisation it issues to the requesting court, the contact details of the relevant department and contact persons responsible for technical matters at the ordinary court that is assisting with the organisation of the videoconference. The requesting court must make all the practical arrangements with them.
14 What, if any, additional information is required from the requesting court?
Requests and communications made under Regulation (EC) No 1206/2001 and any explanations and information included as annexes to these must be translated into French.
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