Judicial cooperation in civil and commercial matters

Procedure for taking of evidence within the European Union

From 1 January 2004, specific regulations apply on taking of evidence between EU member states, with the exception of Denmark. The Council of the European Union approved on 28 May 2001 Regulation (EC) No 1206/2001 on co-operation between the courts of the Member States in the taking of evidence in civil or commercial matters. The Regulation is directly applicable in Sweden but is complemented by the Act (2003:493) relating to the EC regulations on the taking of evidence in cases and matters of a civil or commercial nature and the Government's notification (2003:483) regarding the EC regulation on the taking of evidence in cases and matters of a civil or commercial nature. The Regulation shall, in relation to matters to which it applies, prevail over other provisions in agreements concluded by the Member States, for example the Hague Convention of 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters.

The Regulation shall be applied in civil or commercial matters, where a court in one Member State in accordance with its national legislation requests that a competent court in another Member State shall take evidence or when it requests permission to take evidence directly in another Member State. The direct taking of evidence refers to a situation where a court wishes to take evidence in another Member State, without any court in the other State taking the evidence on its behalf, either by a competent representative of the requesting court taking the evidence in the territory of the other Member State or by means of teleconferences or videoconferences. A request to take evidence with reference to this Regulation shall not be made unless the evidence is intended for use in judicial proceedings that are commenced or contemplated.

The courts shall, except in cases of direct taking of evidence, communicate directly with each other without going via a central authority. Each Member State shall provide a list of those national courts which are competent to take evidence. From the Swedish point of view, all Swedish courts may request the taking of evidence in another Member State in accordance with this Regulation. Any request for the taking of evidence from a court in another Member State shall be dealt with by a Swedish District Court.

Two different forms shall be used in a request for the taking of evidence. Form A shall be used for a request to a court in another Member State for assistance in the taking of evidence. Form I shall be used if the court requests permission to take evidence directly in another Member State. (Use the links to the right to search for a competent court/authority and the forms). In the first situation the requested court shall, within seven days after it has received the request, send an acknowledgement of receipt to the requesting court by filling in form B. If the requesting court has sent the request to a court which does not have jurisdiction, this court shall forward the request to a competent court and shall inform the requesting court of this.

The requested court shall deal with a request without delay and not later than 90 days after the request has been received. A Swedish court which takes evidence on behalf of a court in another Member State shall according to the principal rule, apply the regulations in the Swedish Code of Judicial Procedure. However, a requested court is obliged to comply with a request to handle the matter in accordance with a procedure which is prescribed in the Member State of the requesting court, unless such a procedure is incompatible with the law of the Member State of the requested court or would involve considerable practical difficulties.

A request to take evidence directly in another Member State shall be submitted to the central body or the competent authority (in Sweden the Ministry of Justice is the central body) in the other Member State. Within thirty days the central body or the competent authority shall inform the requesting court, by filling in form J, if the request is accepted or not. The central body or the competent authority may stipulate conditions according to its national law under which the direct taking of evidence is to be carried out. Direct taking of evidence may only take place if it can be performed on a voluntary basis without the need for coercive measures. The requesting court shall, without prejudice to any condition, execute the request in accordance with its national law.

An impediment against execution of the request can be that a person who is to be examined claims a right to refuse to give evidence, or that there is a prohibition against giving evidence either due to the law of the Member State where the requested court is located or as a consequence of the law of the Member State where the requesting court is located. An impediment may also exist if the request does not lie within the field of application of the Regulation, if the execution of a request does not lie within the jurisdiction of the requested court, if the requesting court has not followed the requested court's request to complement the application, or if the necessary deposit or advance has not been made or submitted within the requested time-limit. (Use the link to the right for manuals to all countries.)

The taking of evidence for a foreign court in civil cases and matters (when the EU-procedure is not applicable)

The Act on the taking of evidence for a foreign court of law (1946:816) contains the relevant provisions. A request for the taking of evidence in a civil case or matter is submitted by the foreign court to the Central Authority which forwards it to the competent Swedish court which is to perform the taking of evidence. A request from one of the other Nordic states, however, is sent directly to the competent Swedish court. The measures which may be required with regard to taking evidence are listed in the Act. The list of measures is, however, not exhaustive.

The procedure takes place at a district court in compliance with the rules set out in the Swedish Code of Judicial Procedure. If the foreign court has specific wishes with regard to the procedure, they will be accommodated insofar as they are not contrary to Swedish law. Heed must also be paid to restrictions in procedural law in the foreign state. Foreign judges have the right to be present when the evidence is taken. When the evidence has been taken, the assignment is reported back - generally by a record of the taking of evidence - to the other state through the Central Authority. It should, however, be mentioned in particular that documents drawn up with reference to the taking of evidence under the 1954 Hague Convention, at the request of an Austrian court, should be forwarded by the Swedish court directly to the Austrian court.

The Swedish state covers most of the costs incurred in connection with the taking of evidence.

The taking of evidence at a foreign court in civil or commercial cases (when the EU-procedure is not applicable)

The Act on the taking of evidence at a foreign court of law (1946:817) contains the relevant provisions. The taking of evidence means that a Swedish court is assisted by a foreign court in obtaining, for example, written evidence, questioning witnesses and obtaining evidence from experts. The action must have been instituted at a Swedish court. A request for the taking of evidence shall contain a report of the facts of the case and information about the evidence referred to and what it is to prove. The court can specify that a certain procedure required under Swedish law is to be applied. However, the main rule is that the law of the foreign country applies.

The request should be sent to the Central Authority which forwards it to the competent court in the other state. If direct communication is permitted in accordance with conventions and agreements with the other state, the letter of request shall instead be submitted to the appointed Central Authority in the other state or to the foreign court (see the 1970 Hague Convention).

The Central Authority translates the letter of request, if necessary, before forwarding it to the foreign court and subsequently informs the Swedish court of the translation costs incurred. In the case of direct exchanges of letters, the competent court ensures that the letter of request is translated. Information on language requirements and addresses can be found in SFS 2000:708, appendix (only in Swedish).