EVIDENCE — Witness — Examination abroad — Taking of evidence before proceedings issued — Purpose only to assess strength of case — Whether permissible under European Convention — Whether "provisional … protective measure" — Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters 1968 (as amended by Accession Conventions of 1978, 1982, 1989 and 1996), art 24

St Paul Dairy Industries NV v Unibel Exser BVBA (Case C-104/03)

ECJ: President of Chamber Jann, Judges Colneric, Cunha Rodrigues, Ileši and Levits: 28 April 2005

An application, before proceedings were brought, for the taking of evidence from a potential witness could not be granted as a "provisional … protective measure" under art 24 of the Brussels Convention(as amended) ("the Convention") where the purpose was to enable the applicant to decide whether to bring a case and assess its strength.
The First Chamber of the Court of Justice of the European Communities so held on a reference by the Gerechtshof te Amsterdam (Netherlands) for a preliminary ruling.

Art 24 of the Convention provides: "Application may be made to the courts of a contracting state for such provisional, including protective, measures as may be available under the law of that state, even if, under this Convention, the courts of another contracting state have jurisdiction as to the substance of the matter."

In the context of a dispute between S and U, companies established in Belgium, over which the Belgian courts would have jurisdiction but in which no proceedings had yet been issued in any country, U applied to a court in the Netherlands, where the law provided for the provisional hearing of a witness before proceedings were issued, for the provisional hearing of a witness resident in that country. An order was made, but on appeal by S on the ground that there was no jurisdiction to hear the application, the appeal court sought a preliminary ruling on whether, in circumstances such as those of the case, an application such as that by U fell within the scope of the Convention as being a provisional or protective measure as provided for in art 24.

THE COURT said that since art 24 authorised a court which did not have jurisdiction to hear the substance of a case to make a ruling, it was an exception to the general system of jurisdiction established by the Convention and so was to be interpreted strictly. It was intended to avoid loss to parties by reason of the long delays inherent in international proceedings and referred to measures which, within the Convention, preserved a factual or legal situation so as to safeguard rights. It was evident that in the present case the purpose of the application was to enable the applicant to decide whether to bring a case, to determine whether it would be well founded and to assess the relevance of evidence which might be adduced. That clearly did not pursue the aim of art 24, and such an application could easily be used to circumvent the jurisdictional rules in arts 2 and 5–18 of the Convention. A measure such as that in issue therefore could not be regarded as a provisional or protective one within art 24.

Reported by: Michael Hawkings, barrister