In spite of the increasing Europeanization of private law, questions associated with the law of evidence, such as means of evidence, admissibility of evidence and burden and standard of proof, are still based on national laws. Relevant international or European provisions, however, do exist for letters rogatory and in cases with cross-border relevance. Relevant sources of law include The Hague Evidence Convention and Council Regulation No 1206/2001. In addition, there is an emerging body of soft law dealing with these fields of law.
2. Comparative law of evidence
a) Distribution of tasks between the parties and the court
Of central importance for the law of evidence is the distribution of tasks between the parties and the court. At first sight, there seems to be a fundamentally different structural approach between civil procedure in continental jurisdictions, on the one hand, and of the Anglo-Saxon tradition on the other, which is commonly perceived as an all-encompassing challenge in any harmonization attempt. It has been argued that north of the Channel the procedure of gathering and presenting evidence is exclusively allocated to the parties and their solicitors while south of it this process is directed by the judge. In fact, it is true that this was the case over large periods of the 20th century. However, neither historically nor presently is such distribution of tasks to be seen as an essential and deeply rooted concept within the respective jurisdictions. Historically, this notion is inappropriate because, for example, the French Ancien Code de Procédure Civile of 1806 mainly held the parties responsible for presenting the facts and only the amendment of 1976 bestowed governing and controlling powers upon the judge. Also, the German Zivilprozessordnung (ZPO)—which had been significantly influenced by French civil procedural law—shifted such competencies (and only partly so) onto the judge as recently as within the 20th century. Presently, the above-outlined bias does not correspond to reality either, because in 1999 England’s Woolf Reform awarded significant case management powers upon the judge in both the pre-trial as well as the trial phase of court procedures. A deep rift, however, still divides European jurisdictions and the United States, where a jury is generally responsible for deciding whether the evidence presented suffices for supporting the stated facts.
b) Access to information and other means of evidence
In Germany, access to information and evidence is mainly organized as a one-tier procedure, within evidence procedure, flanked by managing directions and instructions of the court due to its duty to conduct the proceedings and the initial mandatory duty to try to settle the dispute amicably which is administered by the judge.
Common law jurisdictions have a further instrument for gathering evidence: the mechanism of discovery, also referred to as disclosure. Here, parties are required to establish a list with all relevant documents that they possess and allow the other party to inspect these, examine real evidence and ask for further information. A comparable procedure does not exist in German civil procedure. The function of discovery is two-fold: a party shall not be disadvantaged due to not having access to information relevant for his case. Secondly, the exchange of information at an early stage of the trial should improve the procedural efficiency and thus reduce costs.
These functions are organized differently in German civil procedure: besides procedural provisions regarding documentary evidence and material rights to ask for information, the lack of access to information is neutralized by rebuttable presumptions, the procedural gradation of the burden of statement, the shifting of the burden of proof, prima facie evidence, strict liability as well as the principles applicable to the obstruction of obtaining evidence.
Some other European civil law jurisdictions which also do not include any procedure such as discovery have recently tended towards increasing the duties to cooperate addressed to the parties and to a significantly larger extent than provided for by German civil procedure.
The extension of court competencies stretches the furthest in Austria where a ‘cooperation model’ is practised. The French solution is interesting since it contains cooperation obligations that apply regardless of the allocation of the burden of proof as found in Art 11 Code de procédure civile. Last but not least, civil procedure in the Swiss cantons contains party-addressed obligations of a procedural nature that require them to present information and documents and even allow the court to initiate the gathering of evidence independently from the parties.
c) Burden of proof
Differences also exist with regard to how the burden of proof is distributed between the parties.
German civil procedure differentiates between a party’s responsibility for presenting the facts and its actual burden of proof. Whoever is responsible for introducing a relevant fact into a trial will lose the lawsuit if he fails to do so. The same applies with regard to presenting evidence for a relevant fact if the opponent challenges the respective party’s factual statement and the party fails to prove it. These responsibilities are set out clearly and do not oscillate between the parties.
Anglo-Saxon law differentiates between the legal burden (also referred to as persuasive burden) and the burden of adducing evidence (also referred to as evidential burden). The latter governs a party’s obligation to adduce sufficient evidence while the former—also referred to as ultimate burden—allocates the risk of non-persuasion. This differentiation originates historically from case law. The legal burden corresponds most closely with the German objective burden of proof; the burden of adducing evidence relates to some extent to the German subjective burden of proof. The difference between these, however, is that for the purpose of the German subjective burden of proof the relevant question is whether evidence has been offered for a relevant and contested factual statement or not. A judge in a jury trial, on the other hand, must also verify whether the evidence offered is likely to allow a sufficiently appropriate evaluation of the fact in question. In fact, the judge undertakes a form of pre-evaluation by means of a prior assessment of the presented evidence which as a matter of principle would be undue under German law.
d) Standard of proof
German civil procedure requires the judge’s certainty about a factual statement determined by the free evaluation of the presented evidence (§ 286 ZPO). Contrary to this, English civil procedure—until recently—deemed it sufficient that a factual statement was supported by a higher degree of probability than the other party’s version of the relevant facts. The latest research shows, however, that these differences are not very significant. Both jurisdictions employ a flexible understanding of the required degree of conviction. In spite of the differing theoretical foundations as to what degree of conviction suffices for the question whether or not a factual statement has been established by the evidence presented, this difference has very little significance in court practice.
e) Means of evidence
In most countries, means of evidence are witnesses, expert evidence, documentary evidence, and physical or real evidence. Stark differences exist between the English and continental understanding with regard to the function of the party within a trial. In France (comparution personelle des parties on the one hand and déclarations des tiers on the other hand) and Germany, evidence by the party is regarded as an independent and self-contained category of evidence alongside the above-named four types, whereas in English civil procedure a party is admitted as a witness. The English model has been adopted by the Netherlands with its so-called partijgetuige.
f) Admissibility of evidence
Furthermore, there are different approaches to dealing with means of evidence that a party acquired in an illegal manner (eg illicit recordings of conversations or stolen photographs). In these cases, two contrary spheres of legal interest collide: the right to present evidence to support one’s case clashes with another’s right to privacy or confidentiality.
German civil procedural law does not allow illegally acquired evidence to be brought forward in a lawsuit, as the evaluation of such evidence would be looked upon as a (further) violation of the affected person’s right to privacy or confidentiality. Only in exceptional cases, where the legitimate interest to present evidence is regarded as more significant than the legal position thereby affected, may such means of evidence be employed.
A very different system applies in English civil procedure. Prior to the coming into force of the Woolf reforms in 1999, any means of evidence, including those acquired illegally, were in principal suitable for use in a trial. Only the admissibility was of relevance, ie whether or not the piece of evidence was regarded useful for verifying a stated fact. It was only after 1999 that the court had discretion to exclude certain means of evidence. Due to the importance English law places on ascertaining the truth, one cannot expect that courts will make ample use of this new instrument. In Jones v University of Warwick  WLR 954 (CA), the court held that a secretly recorded video tape could be used as means of evidence. In this case, an employer having been sued by his employee after a workplace accident hired a private detective who deceitfully gained entrance into the claimant’s private premises to obtain the video at issue. The court held that a judge’s responsibility requires him, when exercising his discretion, to consider the effect of his decision upon litigation generally and therefore allowed the evidence.
3. International law of evidence
An attempt at universal unification of the law was made by the Hague Convention on Taking of Evidence Abroad in Civil or Commercial Matters (Hague Evidence Convention) of 18 March 1970. It meant to bridge the stark differences between the means considered appropriate for acquiring evidence in US and European civil procedure.
In its first chapter, the Hague Evidence Regulation deals with the taking of evidence by foreign courts by means of letters rogatory; its second chapter regulates the taking of evidence by diplomatic services personnel, by consular representatives and specific agents of the adjudicating court. Practically-speaking, the latter chapter is not very relevant because it is dependent on prior authorization by the state in which the hearing is to be held and the affected state’s authorities have discretion whether or not to grant such permission.
In practice, there is significant potential for conflict between the US and European jurisdictions (transatlantic conflict of jurisdictions). Of particular concern are questions such as whether a pre-trial discovery of documents—not known in European civil procedure—is to be nevertheless undertaken if a letter rogatory from a US court requires this. Continental European jurisdictions have severe reservations against allowing such procedures. The absence of a comparable requirement to substantiate facts and evidence and the admission of ‘fishing expeditions’ in pre-trial discovery conflict with the continental European concept.
However, Art 3 Hague Evidence Convention grants some support for the continental European perspective by requiring at least some degree of specification and substantiation with regard to the subject matter of the taking of evidence. Furthermore, rights to withhold information may be pleaded regardless of which of the two involved countries’ jurisdiction grants such rights. However, a letter rogatory may not be refuted solely because the addressed state’s procedural law does not provide for such proceeding, see Art 12(2) of the Hague Evidence Convention, though Art 23 of the Hague Evidence Convention may be regarded as an exception to this rule by granting to the addressed state the power to deny a pre-trial discovery of documents. Although the wording of this article does not include other means of evidence than documentary evidence, it is generally interpreted as referring to all means of evidence. Nearly all signatory states have used the exception granted by Art 23 of the Hague Evidence Convention; solely the United States and three further states refrained from doing so.
Interesting suggestions for resolving the transatlantic conflict of jurisdictions can be derived from the Rules on the Taking of Evidence in International Arbitration (arbitration (international)) that were introduced by the International Bar Association (IBA) in 1999.
4. European law of evidence
Council Regulation 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 (Evidence Regulation) has a wider scope of application than the Hague Evidence Convention.
It is meant to enhance inner-European cooperation in the taking of evidence. Although its concept is based on the Hague Evidence Convention, it moves in many respects beyond that instrument. For instance, it contains provisions on direct communication between the courts and on the taking of evidence by means of telephone or video-conferencing devices. The principle of immediacy is also taken into account by Art 12 Evidence Regulation as it grants a right of presence to representatives of the requesting court in the performance of the taking of evidence by the requested court. Article 11 extends this right of presence to the parties involved.
Member States must establish a central authority for supervising the implementation of the regulation. The Evidence Regulation is in force in all European Member States with the exception of Denmark, see Art 1(3) Evidence Regulation.
It applies to civil law and commercial matters in public courts, thus also including insolvency procedures and jurisdiction over non-contentious matters. It does not apply to arbitration procedures.
Article 1 defines the act’s scope as applying to cases where a court, in accordance with its own procedural law, requests (i) a foreign court to initiate the taking of evidence (Arts 10–16 Evidence Regulation) or where a court requests (ii) to be allowed to proceed with the taking of evidence in a foreign Member State (Art 17 Evidence Regulation). The request has to be in writing in the addressed country’s language (Art 5 Evidence Regulation) using a standard form provided (Art 4 Evidence Regulation). Article 10(1) and (2) Evidence Regulation establish the obligation to answer such request according to the lex fori of the addressed Member State immediately, but no later than within 90 days upon receipt. Rejection or denial may be grounded on a party’s right to withhold information, the inadmissibility of such evidence, the lack of competence and the violation of certain obligations to cooperate (Art 14 Evidence Regulation). There is, in contrast to the Hague Evidence Convention, no ordre public provision (public policy) that could limit a request pursuant to Arts 10–16 Evidence Regulation.
By generally allowing the taking of evidence by the requesting court or other authorized personnel independently of a specific grant of permission, the Evidence Regulation has created a mechanism that far exceeds the possibilities created by Art 17 of the Hague Evidence Convention. However, such requests must be accommodated only in those instances where the taking of evidence can be accomplished on a voluntary basis, ie without the use of coercive measures (see Art 17(2) Evidence Regulation). This requirement is vital in light of international law as it is clear that a foreign state’s territorial sovereignty would contradict the use of coercive measures. At the same time, this aspect is a significant weakness of the instrument in question: if the witness to be questioned refuses to cooperate, there are no coercive measures available. A further limitation can be seen in the ordre public provision (public policy) that applies to requests based on Art 17 Evidence Regulation.
In the report on the application of the Evidence Regulation, dated 5 December 2007 (COM (2007) 769 final), the European Commission, with the help of a study providing an empirical analysis of the application of the regulation, established that the regulation could be said to have achieved its objectives to a large extent, though there was still room for improvement. Difficulties were observed in the use of the standard forms. Moreover, it was shown that the measures for the direct taking of evidence according to Art 17 Evidence Regulation as well as means for implementing communication technology had been very rarely used. Finally, Member States were asked to implement appropriate measures to ensure that requests for the taking of evidence would be satisfied more promptly and in all events within the 90 days specified by Art 10(1) Evidence Regulation.
5. Soft law rules relevant for the law of evidence
The fragmentary character of the suggestions made by the Storme Commission—a group of procedural law experts from every EU Member State brought together by the EU Commission in 1990—becomes apparent in the law of evidence. Whilst containing nine provisions on the editing of documents (Arts 4.1 ff), there are merely two provisions on the remaining law of evidence; one on the duty to appear in court and give information (Art 5) and another on the substitution of oral hearing protocols by audio recordings (Art 6). Provisions on the means of evidence, the standard of proof, the burden of proof and the inadmissibility of evidence are lacking entirely. Concerning disclosure of documents, the report refers to the model of English procedural law pursuant to the Woolf reform.
The ALI/UNIDROIT Principles of Transnational Civil Procedure of 2004 are also based on a disclosure regime. Of crucial importance was finding common ground with the United States and to minimize fishing expeditions through the adoption of a higher threshold of substantiation as well as a narrowed scope of relevant facts. The definition and organization of the structure and range of the right to withhold information were left to national law (Principle 18.1). Admissible means of evidence are testimony of parties and witnesses, expert testimony, documentary evidence and evidence derived from the inspection of things (Principle 16.1). According to Principle 21.2 the standard of proof follows the example of continental European law and is based on the judge’s reasonable conviction that a certain statement is true. The burden of proof is allocated ordinarily in such a way that each party has the burden to prove all the material facts that are the basis of that party’s case (Principle 21.2).
Promising perspectives with regard to procedural harmonization derive not only from procedural endeavours but also from harmonization projects in the field of substantive law that include procedural consequences, such as Dir 2004/48 of 29 April 2004 on the enforcement of intellectual property rights or the White Paper of the Commission on damages actions for breach of the EC antitrust rules (COM(2008) 165 final). According to Art 6 of Dir 2004/48, a party that has substantiated its claim under presentation of all reasonably expectable means of evidence has the right to demand disclosure of all relevant further evidence that it can specify and that is within the opponent’s scope of influence. Further- more, Art 7 permits pre-trial confiscation of evidence corresponding to the saisie-contrefaçon under French law and the English law ‘search order’.
Walther J Habscheid (ed), Der Justizkonflikt mit den Vereinigten Staaten von Amerika, Berichte von Rolf Stürner, Dieter G Lange und Yasuhei Taniguchi (1986); Walther J Habscheid, ‘Beweislast und Beweismaß—Ein kontinentaleuropäisch-angelsächsischer Rechtsvergleich’ in Festschrift Gottfried Baumgärtel (1990) 105; Peter Gottwald, ‘Das flexible Beweismaß im englischen und deutschen Zivilprozess’ in Festschrift Dieter Henrich (2000) 165; Gerhard Wagner, ‘Europäisches Beweisrecht—Prozessrechtsharmonisierung durch Schiedsgerichte (2001) 9 ZEuP 441; Heinrich Nagel and Marlis Bajons (eds), Beweis-Preuve-Evidence (2003); Moritz Brinkmann, Das Beweismaß im Zivilprozess aus rechtsvergleichender Sicht (2005); Daniel Waterstraat, ALI/UNIDROIT Principles and Rules of Transnational Civil Procedure (2006); Stefan Huber, Entwicklung transnationaler Modellregeln für Zivilverfahren (2008); Adrian Briggs and Peter Rees (eds), Civil Jurisdiction and Judgments (2009); John A Jolowicz, ‘Discovery of documents in the common law and the forced production of documents in the civil law systems’ in Essays in honour of Konstantinos D Kerameus, vol I (2009) 535; Hodge Malek (ed), Phipson on Evidence (2010).