Mutual trust and the Evidence Regulation: the Grand Chamber decision in Aucrinde

This post was contributed by Dr. Vincent Richard, who is a practising lawyer in Luxembourg.

As announced by Marta Requejo on this blog, the Court of Justice delivered its judgment in the case Aucrinde (C-196/24) on 16 July 2026.

This is the first case on the recast of the Evidence Regulation (Reg. 2020/1783) and, more broadly, one of the few decisions of the Court of Justice about the taking of evidence in civil matters.

The reference for a preliminary ruling raises an important question in a sensitive factual context. This explains why the case has been assigned to the Grand Chamber. A first for the Evidence Regulation.

Facts of the case

The main proceedings take place before the District Court of Genoa, in Italy. The claimant aims to prove his genetic connection to a deceased individual, who is buried in France. The defendants, the deceased man’s children, opposed genetic testing of themselves, requesting instead that tests be carried out on the deceased father.

In that context, the Tribunal of Genoa submitted a request for the exhumation of the body of the putative father under Regulation 2020/1783 to the French first instance Court of Chambéry, to obtain a DNA sample.

The issue is that this type of investigation is not permitted in France, as per article 16-11 of the French Civil Code. This article states that posthumous DNA identification is prohibited unless the deceased had explicitly consented to it before their death, which was not the case here.

Consequently, instead of granting the measure, the French court referred two questions to the Court of Justice asking whether Article 12 of the Evidence Regulation allows a national court to refuse to comply with a request for the taking of evidence on the ground that the request is contrary to fundamental principles of the national law of the requested State. In its second question, the court asks, in essence, what role the Charter of fundamental rights plays in that assessment.

Direct and indirect taking of evidence

The question of the French court can be explained in part by the fact that the evidence Regulation provides for two methods of obtaining evidence. Under the main “indirect” method (the one used here), the requesting court asks the requested court to proceed with the taking of evidence (Art. 12 to 18). In that situation, the requested court shall execute the request in accordance with its national law, and the regulation contains only limiting grounds of refusal (Art. 16), none of which include the incompatibility of the request with public policy or fundamental rights. Interestingly, the requesting court may call for the request to be executed in accordance with a “special procedure”, and in that situation, the requested court may refuse to execute the request if this procedure is incompatible with its national law (Art. 12(3)).

Additionally, the Regulation allows for the direct taking of evidence (Art. 19 to 21) where the court seized of the merits asks permission to the central body of the State where the taking of evidence takes place to conduct the investigating measure directly. In that situation, the regulation authorises the central body to refuse the measure, “if the direct taking of evidence requested is contrary to fundamental principles of law in its Member State”.

There is thus something curious in the fact that a State may refuse to permit the direct taking of evidence on the ground that it conflicts with its fundamental rights and may object to a special procedure incompatible with its own law yet cannot refuse to execute a request for the taking of evidence addressed to its court.

Mutual Trust in the execution of the request

The Court of Justice carries out a systemic analysis of the Regulation and concludes that it is for the requesting court (here, the district court of Genoa) alone to decide on the appropriateness and the legality of the investigative measure according to its own national law. The compatibility of the request with French law is therefore, for the indirect taking of evidence, irrelevant.

The requested court must execute the measure without delay, with no possibility of objecting to it beyond the grounds for refusal exhaustively set out in the Regulation. True, the requested court must execute the request “in accordance with its national law”, but this only concerns the “detailed procedural arrangements for gathering that evidence” (§41), and it cannot be used to reintroduce public policy review through the back door. Interestingly, Advocate General Ćapeta justified in part this interpretation in the wording of article 9(1) of the 1970 Hague Convention acknowledging the origin of the EU regulations.

Regarding the compatibility of the measure with fundamental rights, the court relies on Opinion 2/13 to declare that, in accordance with the principle of mutual trust, the requested court must presume that the other Member State is complying with EU law and fundamental rights (§62 and 63) and may not check whether the other Member State has actually observed the fundamental rights guaranteed by the European Union in a specific case “save in exceptional circumstances”.

Instead of discussing what these circumstances may be, or whether they apply in the case at hand, the Court declares that it is also for the requesting court alone to verify that its decision to order an investigative measure is consistent with the fundamental rights guaranteed by the European Union (§64).

The court could have stopped there. After all, if assessing the measure’s compatibility with fundamental rights falls solely within the competence of the requesting court, then the outcome of that assessment should be irrelevant to the requested court and, by extension, to the question referred by the French tribunal.

And yet, the court goes on to examine the compatibility of the measure with the Charter, by drawing a parallel with article 8 of the ECHR and the case Pascaud v. France, in which the European Court of Human Rights ruled that French courts had violated Article 8 ECHR by annulling a post-mortem genetic analysis where no other means existed to establish the claimant’s biological paternity. The Court of Justice appears to endorse the ECHR’s view that Article 16-11 of the French Civil Code goes too far in protecting the presumed wishes of the deceased at the expense of the legitimate right to know one’s origins.

Conclusion

From a practical standpoint, the Court’s reasoning shows that courts and litigants must pay close attention to how a request for the taking of evidence is framed, since, as we have seen, this directly bears on the requested State’s power to refuse it. Interestingly, this may make the Regulation more attractive in certain borderline cases.

More broadly, the final paragraphs of the decision leave one question unanswered: Is there truly no exception to mutual trust in civil matters when there is no public policy exception? The Advocate General had drawn an interesting parallel with judicial cooperation in criminal matters and the need for a safety valve that the Grand Chamber does not mention.

The Court of Justice firmly holds that mutual trust admits of no exception for the indirect taking of evidence, while taking care to show that, in the case at hand, it causes no harm. But what if it had?