Is Something Better Than Nothing?   

On 11 September 2025, Advocate General (“AG”) Ćapeta delivered her Opinion in Aucrinde, the very first case to reach the Court on the interpretation of the Recast Evidence Regulation since it became applicable in July 2022. While touching upon several issues, one remark stands out: the AG cited the non-fulfilment of the two-step test from criminal judicial cooperation as a reason for the requested court to execute the foreign order. This passage might signal the first migration of the two-step test to civil judicial cooperation, potentially strengthening fundamental rights safeguards, but also carrying risks given its complexity and inherent logic.

Facts of the case and opinion of the Advocate General

An individual brought proceedings before an Italian Civil District Court seeking a declaration that he was the illegitimate son of a deceased man buried in France. To establish the parentage status, the Italian court ordered an expert report to be carried out upon exhumation of the presumed father’s body. In 2022, the Italian court sent a cooperation request to the relevant French court using the Recast Evidence Regulation, seeking authorization for the measure. Since French law allows exhumation to establish parentage only if the deceased consented during their lifetime, (which the presumed father had not), the French court stayed the proceedings and referred two questions to the European Court of Justice (“ECJ” or “Court”). The referring court first asked whether public policy permits refusal of such a request and, if not, how the balance between human dignity of the deceased and the right to know one’s origins should be construed.

In her Opinion, AG Ćapeta answered that the Regulation does not allow a requested court to refuse execution of a request for the taking of evidence simply because the procedure contravenes its public policy (para. 77). To reach this conclusion, the AG firstly highlighted that the refusal grounds under the Regulation differ depending on whether the request concerns an indirect taking of evidence (whereby the procedure needs to comply with the law of the requested court), or a direct one (whereby the procedure is governed by the law of the requesting court). This difference is essential because Article 19(7)(c) of the Regulation allows a court to invoke public policy as a refusal ground only for the latter (paras. 38-44). As this case concerned an indirect request for the taking of evidence, the AG concluded that only the grounds encompassed in Article 16 of the Regulation could be invoked, none of which were applicable (para. 72).

The AG also clarified that Article 12(2) of the Regulation – which stipulates that a request shall be executed in accordance with national law – does not in fact establish another ground of refusal (para. 70). Rather, it merely requires the requested court to apply its own procedural rules to the taking of evidence (para. 62). Referring to mutual trust, the AG held that the requested court must presume the requesting court’s order complies with fundamental rights, and that refusal beyond the list provided in Article 16 would only be justified by meeting the conditions of the two-step test developed in the Aranyosi and Căldăraru judgment, which were not fulfilled (paras. 69-71).

Moreover, when balancing two rights under the EU Charter of Fundamental Rights (“CFR”) – the right to know one’s origins (as part of the right to private and family life), and respect for the body of the deceased person (as part of the right to human dignity) – the AG underlined that, in the absence of EU legislation, Member States may strike the balance differently, provided they respect the rights’ essence (para. 110). Because the requesting court’s approach did not infringe the essence of either right, she concluded that it was not precluded by the CFR (para. 111).

Exceptions to mutual trust

At first glance, the AG’s Opinion may appear as a “business-as-usual” type of solution, given that it favoured the application of mutual trust and invites the ECJ to hold that the French court should execute the Italian court’s request. The grounds for refusal are exhaustively listed in the Regulation, and a two-step test has been developed by the Court to allow further exceptions to mutual trust. If none of these can safeguard the fundamental right at stake or preserve French public policy, the requested court cannot invoke its own national law to deny execution. Yet, the significance of this Opinion lies in its potential to allow a national court to refuse execution of a foreign cooperation request, adding another piece to the puzzle of exceptions to mutual trust that the ECJ is gradually developing.

In the absence of the public policy clause (which is the most commonly invoked ground to refuse recognition and enforcement of foreign judgments in civil judicial cooperation), the AG proposed that the national court applies the two-step test developed in criminal judicial cooperation with Aranyosi and Căldăraru. In short, if the requested court finds evidence of systemic deficiencies in the requesting court’s legal system in protecting a fundamental right, and the individual affected by the foreign decision faces a real risk of breach of that right, it may refuse execution of the cooperation request without relying on a specific refusal ground. The fact that the AG resorted to the two-step test after recalling the similarities between the Regulation, on the one hand, and the European Investigation Order and the EPPO Regulation (two instruments of criminal judicial cooperation), on the other (para. 68), suggests that this transposition is intentional: AG Ćapeta sees this test as a legitimate tool to enforce fundamental rights in civil judicial cooperation.

If this solution were espoused by the Court, it would constitute, to the best of this author’s knowledge, the first and formal use of the two-step test in civil judicial cooperation. Not only has the test already been employed in criminal judicial cooperation, (regardless of the secondary law instrument at stake: be it the European Arrest Warrant or “EAW”, as in LM, or the system for the transfer of prisoners, as in Staatsanwaltschaft Aachen), in the Common European Asylum System as in N.S. (although the first step might have been superseded with C.K. and others), and even in the European Competition Network, as in Sped-Pro, but it would now become the fundamental rights “safety valve” of civil judicial cooperation as well.

What is more, although the AG did not explicitly specify which fundamental right the two-prong test would concern, its proposed use in the context of refusing execution suggests it is intended to protect the right to human dignity under Article 1 CFR. If this argument received the Court’s placet, it would add yet another layer to the evolving framework of fundamental rights that can be operationalised through the two-step test (spoiler: at this point, probably all). As a matter of fact, so far the test has been applied to the prohibition of torture and inhuman or degrading treatment under Article 4 CFR, as in Aranyosi and Căldăraru, the right to a fair trial under Article 47 CFR, as in LM and its progeny L and P, X and Y and Puig Gordi, and the right to  private and family life under Article 7 CFR and the protection of the best interests of the child under Article 24 CFR, as in GN. Extending it to human dignity would further develop the emerging architecture of fundamental rights protection in judicial cooperation.

All that glitters is not gold

A reading of the judgment that focuses specifically on the AG’s reference to the two-step test may first appear as a victory for fundamental rights. If the Court adopted the same view as AG Ćapeta, fundamental rights in civil judicial cooperation would suddenly enjoy the protection “booster” offered by the two-step test. This would be particularly useful for anyone opposing cross-border recognition and enforcement of a foreign judgment, as civil judicial cooperation instruments are generally quite parsimonious when it comes to grounds for refusal.

For instance, three out of the four European procedures for the recovery of outstanding debt, namely the European Enforcement Order Regulation, the European Order for Payment, and the European Small Claims Procedure (and the Regulation that amends the last two), do not even include public policy within the grounds to refuse enforcement of a foreign judgment. Judicial cooperation in family matters with cross-border implications is also strict in its refusal grounds, as the cases of Aguirre Zarraga and P v Q demonstrated that the Brussels IIbis Regulation does not allow a court to invoke public policy to oppose enforcement of a judgment either ordering the return of a child (even where a fundamental rights violation is at stake), or where jurisdiction rules were misapplied. From this perspective, this new avenue to challenge the quasi-automaticity of mutual trust via the two-step test would bring more fundamental rights considerations into the Area of Freedom, Security and Justice, a journey that secondary law in judicial cooperation is already embarking on anyway. For example, the recent Regulation on the European Production Orders and European Preservation Orders explicitly includes a refusal ground based on a manifest breach of fundamental rights, without needing to rely on the two-step test.

However, this could also prove to be a somewhat Pyrrhic victory, not least because the two-step test has faced criticism for its inherent complexity and paradoxical logic. How is the requested court supposed to obtain evidence from the requesting court that the latter’s legal system is tainted with systemic deficiencies in protecting whichever fundamental right? And if the requesting court’s legal system indeed displays systemic deficiencies, shouldn’t the onus of proving compliance shift to its legal apparatus, instead of requiring the individual to demonstrate they also run a real risk? These questions become more pressing here, because a transposition of the test finds no clear legal basis in the Regulation: whereas it is typically invoked by relying on a fundamental rights clause (such as Article 1(3) of the EAW), the Regulation contains no equivalent provision.

Moreover, scholarly work already highlights that the logic underpinning the two-step test in criminal judicial cooperation is conceptually different from its civil counterpart. In criminal matters, mutual trust applies prospectively: a requested court cannot forecast with absolute certainty how an individual’s fundamental rights will be affected once they are surrendered to another Member State for criminal prosecution. The two-step test serves to curb the future risks faced by this person. By contrast, in civil judicial cooperation, any breach of fundamental rights has already occurred, and is reflected in the foreign judgment before the requested court. If the Italian court’s decision at stake does not breach the human dignity of the deceased, that is certainly a relief. However, had the AG concluded otherwise, the violation would already be occurring, making the two-step test’s speculative inquiry into systemic deficiencies of the Italian legal system unnecessary. Once a CFR right is breached, its status as primary law should allow it to take precedence over secondary law, regardless of the latter’s refusal grounds or the fulfilment of a hypothetical test.

Conclusion

It remains to be seen whether the ECJ will also indulge in the two-prong test as a refusal ground under the Regulation. If so, the test could finally make its entrance in the realm of civil judicial cooperation. Nonetheless, this transposition may feel somewhat forced: while potentially justifiable to avoid impunity in judicial cooperation in criminal matters, the test’s logic is less fitting in civil contexts, where there is no fugitive to catch and, in this case, the subject of the order for the taking of evidence cannot even oppose it. Enhancing fundamental rights safeguards in the Regulation – which currently lacks them – would surely be welcome, but whether this is something that genuinely strengthens their protection or adds little value to it remains an open question.