Aucrinde: A Few Further Remarks on Cross-Border Taking of Evidence

This post was contributed by Vytautas Vaicekauskas who is a PhD candidate at Vilnius University.

On 16 July 2026, the Court of Justice of the European Union (“CJEU”) delivered a judgment in case No C-196/24 (“Aucrinde”) for the first time concerning the Regulation (EU) 2020/1783 on cross-border taking of evidence in civil and commercial matters (“EU Evidence Regulation”).

Building on the ideas presented by Vincent Richard on this blog, this post examines a few further points on cross-border taking of evidence raised in the CJEU’s judgment in the Aucrinde case especially on the refusal grounds in indirect taking of evidence, excluding any future reliance on the law of the requested Member State (even public policy matters) for refusal.

Background

Aucrinde concerns civil proceedings before the Tribunale di Genova (Italy) where a person sought a declaration that a deceased man, buried in France, was his biological father. The Italian court ordered an expert report on genetic characteristics of the applicant and the alleged father.

As the legitimate children of the alleged father refused to undergo a test, the Italian court ordered an expert report based on the exhumation of the alleged father’s remains, submitting a request for indirect taking of evidence to the Tribunal Judiciaire de Chambéry (France).

The French court, faced with a French law prohibition on genetic identification of a deceased person without his consent and being requested to take evidence based on “its national law”, sought guidance from the CJEU.

The Reference of the French court

The French court submitted a request for a preliminary ruling on two (2) questions:

• whether the EU Evidence Regulation permits a requested court to refuse execution of a request on the ground that the procedure specified in the request is contrary to fundamental principles of the national law of the requested State; and
• if not, how the Charter of Fundamental Rights of the European Union (“Charter”), in particular the tension between the right to dignity of the human body after death and the right to know one’s origins, affects the execution of the request.

At the forefront of this inquiry stood Art. 16-11 of the French Civil Code, under which the exhumation of the alleged father’s remains without his consent is not allowed, while the French court must “execute the request in accordance with its national law” under Art. 12(2) of the EU Evidence Regulation.

The French court observed that unlike the Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (“Hague Evidence Convention”), which provides a “sovereignty or security” ground for refusal (Art. 12(1)(b)), the EU Evidence Regulation provides no such ground.

Being sceptical of this, the French court raised the first question as in its view “there is no safeguard” in the EU Evidence Regulation for the requested court in executing a request under a procedure breaching standards of EU law such as fundamental rights.

The Opinion of Advocate General

Advocate General Tamara Ćapeta (“AG Ćapeta”) delivered an opinion, concluding that refusal grounds for indirect taking of evidence should not be extended to Art. 12 of the EU Evidence Regulation.

Firstly, to determine if Art. 12 was applicable, AG Ćapeta brought forward the distinction between indirect and direct taking of evidence under the EU Evidence Regulation, highlighting a number of characterizing differences:

• factually, it depends under whose jurisdiction – requested court or the requesting court – is the person taking evidence acting;
• procedurally, it depends on the bodies communicating and authorising the evidence-taking;
• as to the applicable law, it depends under the procedure of which law of the Member States – of the requested court or of the requesting court – is the evidence taken; and
• refusal grounds, where only under direct evidence-taking do “fundamental principles of law” become relevant.

Adding to this point, in AG Ćapeta’s view, even when such a public policy ground, in general, is applicable during direct taking of evidence, it essentially “only applies to the possibility of direct enforcement of the investigative measure by the requesting court, and not to the substance of the investigative measure”, again strictly limiting the use of such ground to the bare minimum.

Secondly, AG Ćapeta moved to address the notion of “national law” under Art. 12(2), drawing a distinction between applicable laws.

AG Ćapeta found that this term refers to “methodological and procedural matters concerned with the taking of evidence” governed “by the national law of the requested Member State”, while “substantive matters”, for example, permissibility of evidence, are governed by the law of the requesting State. Such a conclusion is drawn:

• textually, as Art. 12(3) of the EU Evidence Regulation refers to “a special procedure provided for in” the law of the requesting Member State;
• historically, as the Hague Evidence Convention provided less ambiguity referring to “law as to the methods and procedures” of the requested Member State;
• structurally, as the architecture of judicial cooperation is based on mutual recognition (mutual trust), meaning that “the requested court must trust that a decision of the requesting court, and the national law on which it is based, is not in breach of fundamental rights as protected by the Charter”.

Importantly, AG Ćapeta sought to introduce a two-step test stemming from criminal judicial cooperation, as noted by E. Sandri (Sandri, 2025), under which the requested court may refuse to execute a request outside Art. 16 listed grounds, if it finds a systemic problem in the protection of the fundamental right at stake in the legal order of the requesting court and a risk that the right of the individual concerned would suffer a breach.

Lastly, AG Ćapeta provided that Art. 16 foresees a strictly exhaustive list with unambiguous language.

The Judgment of the CJEU

The CJEU decided against the use of Art. 12 of the EU Evidence Regulation as an additional ground to refuse execution of a request based on national substantive law, prohibiting the requested court from taking evidence in a particular way, even “including grounds derived from fundamental principles of the law of the State of the requested court”.

The CJEU reached this decision by making the following arguments.

Firstly, the CJEU clarified the roles of the requesting and requested courts in indirect taking of evidence, particularly that:

• the requesting court is the court adjudicating the case, which has the best knowledge of the facts of the case and, thus, is able to best decide on the taking of evidence abroad;
• the requested court, on the contrary, is only the court assisting in taking of evidence based on its procedural rules and, hence, is not in a position to question the decision of the requesting court.

Such a “division of jurisdiction and of responsibilities between those two courts”, as the CJEU rules, is confirmed by the fact that the EU Evidence Regulation is “strictly limited” to procedural aspects of cross-border evidence-taking, leaving harmonization of the laws of evidence outside of its scope and, thus, leaving the requested court with narrow powers in execution of the request.

Building on this last point, the CJEU unequivocally concluded that the requesting court is the only court having the jurisdiction to decide on the subject-matter of the pending case, including on requesting judicial assistance in taking evidence abroad.

Secondly, the CJEU clarified the term “national law” under Art. 12(2), as interpreted by AG Ćapeta, excluding the law of the requested Member State from indirect taking of evidence under Art. 12(2).

The CJEU referred to Art. 12(3) as lex specialis, as only under which can the procedural rules of the requested Member State be substituted with the procedural rules of the requesting Member State. Importantly, the CJEU leaves Art. 12(3) for “exceptional situations”, where the procedural rules are changed but the jurisdiction remains vested with the requested court.

Furthermore, the CJEU drew on the aims of the EU Evidence Regulation, re-affirming its stance on the non-exclusivity of the EU Evidence Regulation given in Weryński, Lippens and ProRail cases, essentially, allowing Member States to provide more effective measures for evidence-taking abroad. Having in mind such a ‘liberalization’ of evidence-taking abroad (Cuniberti, 2020), CJEU confirmed that Art. 16 is to be read restrictively, providing an exhaustive list of refusal grounds.

Interestingly, while making this argument CJEU not only drew on former case law like Weryński case, but also referred to Diageo Brands case concerning public policy ground under the predecessor of Regulation (EU) No 1215/2012 on jurisdiction and the recognition and enforcement of judgments (“Brussels I bis Regulation”). In this way, CJEU pushed the EU Evidence Regulation towards the regime of Brussels I bis Regulation rather than criminal judicial cooperation, as suggested by AG Ćapeta.

Lastly, the CJEU confirmed the significance of mutual trust, while apparently rejecting the introduction of the two-step test from criminal judicial cooperation.

The CJEU ruled that based on mutual trust the requested court must presume that fundamental rights have been observed by the other Member States, leaving for the requesting court to verify if ordered taking of evidence abroad is in conformity with the fundamental rights. As V. Richard puts it, the CJEU “could have stopped there” (Richard, 2026).

However, the CJEU proceeded to analyse the relation between the evidence-taking measure and the Charter even seemingly giving space for speculation whether, as CJEU states, “in exceptional cases” the requested court may check the observance of the fundamental rights.

What’s Next: Implications

Therefore, Aucrinde case confirms the exhaustive nature of refusal grounds under Art. 16 and the absence of a public policy ground for indirect taking of evidence under Art. 12, marking the departure from the Hague Evidence Convention. In this way, Aucrinde case falls within the CJEU’s case law on strengthening options for cross-border access to evidence. Conversely, it can also induce new practices for forum selection, as now the requested court has no power to oppose indirect taking of evidence, even if it goes against its public policy.