European law

Insurance companiesVarious directives have been adopted over the years enabling insurance companies to be established and to operate throughout the European Union without the need for separate licensing in each member state.Directive 2001/17/EC (OJ L 110, 20 April 2001, pp 28-39) makes provision for the reorganisation and the winding-up of such companies.

The directive provides for the law governing proceedings for reorganisation, publication of notice and notification of the proceedings to creditors.

It also makes provision for the applicable law in the case of winding-up proceedings, the 'absolute precedence' for insurance claims over any other claims (subject to any rights under a guarantee scheme), the notification of proceedings to creditors, and the right to file claims.

The directive also contains provisions common to both types of proceedings - effect of the proceedings on contracts and rights, third parties' rights in rem, reservation of title and rights of set off.

Member states must implement the provisions of the directive by 20 April 2003.Competition lawThe European Commission has adopted a decision on the role of the hearing officer in competition proceedings before it (Decision 2001/462/EC, ECSC, OJ L 162, 19 June 2001, pp 21-24).

This supersedes Decision 94/810/ECSC, EC.

The principal role of the hearing officer is to ensure that the effective exercise of the right to be heard is respected at such proceedings.

The officer will be kept informed by the director responsible for investigating the case of developments up to the stage of the draft decision.

The officer organises and conducts hearings and is responsible for ensuring that due account is taken of all facts in the preparation of the draft decision.

Applications to be heard by third parties (in writing) should be submitted to the officer and decisions thereon are taken after consultation with the director; adverse decisions are notified in writing and reasons given.

Likewise, decisions on applications to be heard orally are taken by the officer after consultation with the director; but such applications must be made in response to communications from the commission.

The officer also advises undertakings of the intention to disclose information which may be regarded as confidential; and is the proper recipient of any written comments on such advice.

The officer is also the proper recipient of requests for extensions of time in which to respond to commission communications.

In the interests of clarification, the officer may prepare a series of questions for persons invited to a hearing to ensure that the meeting is properly prepared.

After consultation, the officer, with the director, determines the date, duration and the venue of hearings, and deals with requests for postponement and the admission of fresh evidence.

The officer reports on matters relating to the right to be heard at hearings to the competent member of the commission.Evidence in civil proceedingsThe EU Council has adopted Regulation (EC) 1206/2001 on co-operation between national courts in the taking of evidence in civil and commercial proceedings (OJ L 174, 27 June 2001, pp 1-24).

A civil court in one member state will be able, from1 July 2004, to request a competent court in another member state (other than Denmark) to take evidence directly in the requested state in accordance with the provisions of the regulation (articles 1, 2, 24).

The content of such requests is prescribed by article 4, and prescribed forms are set out in the annex to the regulation.

The requests must be made in the official language of the requested state; if there are several official languages, the request should be made in the official language of the place where the evidence is to be taken or in the official language formally designated for this purpose (article 5).

Requests may be transmitted by any appropriate means and will be acknowledged (articles 6, 7).

Requests should be executed within 90 days of receipt in accordance with the law of the requested state, and (where appropriate) a videoconference or teleconference may be requested (article 10).The requested court may apply any appropriate coercive measures for the execution of the request (article 13).

The request may be refused where the person concerned claims the right to refuse to give evidence (or is prohibited from so doing) under the law of the requested court or (in particular circumstances) under the law of the requesting court; otherwise a request may only be refused on specified grounds, for example, the request does not fall within the scope of the regulation (article 14).

Where the law of the requesting state so permits, the parties and/or representatives of the requesting court may be present when the evidence is taken (articles 11, 12).

A court in one member state may also, on application to the central body in the state concerned, take evidence directly in another state, provided no coercive measures are required (article 17).

The parties to proceedings may be requested to bear the fees of experts and interpreters and certain specified costs; otherwise, the execution of a request under the regulation will not give rise to any claim for the reimbursement of taxes or costs (article 18).

The commission will prepare and maintain a manual setting out: (i) the courts (state by state) which will undertake the execution of requests under the regulation and their territorial jurisdiction; (ii) the central body in each state responsible for supplying information, resolving difficulties, forwarding (exceptionally) requests to the appropriate courts, and dealing with applications under article 17; (iii) the technical means available by courts for receiving requests under the regulation; (iv) the languages in which requests my be accepted in the various states; and any bilateral agreements or arrangements facilitating the taking of evidence which are compatible with the regulation (articles, 19, 21, 22).As between member states, the regulation will supersede the Hague Convention on Civil Procedure 1954 and the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters 1970, and any other bilateral or multilateral agreement between member states relating to the subject matter of the regulation (article 21).

Rules of procedure under the regulation will be promulgated (article 20) and the forms annexed to the regulation will from time to time be updated (article 19).

Although articles 19, 21 and 22 came into operation on 1 July 2001, the rest of the regulation (which is directly applicable in the member states) will not come into force until 1 July 2004.

By Paul Niekirk, Barrister