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12 Provisional Measures

Arnaud Nuyts

From: The Brussels I Regulation Recast

Edited By: Andrew Dickinson, Eva Lein, Andrew James (Assistant Editor)

From: Oxford Legal Research Library (http://olrl.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved. Subscriber: null; date: 06 June 2023

Subject(s):
Provisional remedies

(p. 357) 12  Provisional Measures1

Article 35 (2001 Regulation, Art 31)

Application may be made to the courts of a Member State for such provisional, including protective, measures as may be available under the law of that Member State, even if the courts of another Member State have jurisdiction as to the substance of the matter.

Recital (25)

The notion of provisional, including protective, measures should include, for example, protective orders aimed at obtaining information or preserving evidence as referred to in Articles 6 and 7 of Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights. It should not include measures which are not of a protective nature, such as measures ordering the hearing of a witness. This should be without prejudice to the application of Council Regulation (EC) No 1206/2001 of 28 May 2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters.

Recital (33)

Where provisional, including protective, measures are ordered by a court having jurisdiction as to the substance of the matter, their free circulation should be ensured under this Regulation. However, provisional, including protective, measures which were ordered by such a court without the defendant being summoned to appear should not be recognised and enforced under this Regulation unless the judgment containing the measure is served on the defendant prior to enforcement. This should not preclude the recognition and enforcement of such measures under national law. Where provisional, including protective, measures are ordered by a court of a Member State not having jurisdiction as to the substance of the matter, the effect of such measures should be confined, under this Regulation, to the territory of that Member State.

I.  Introduction and Legislative History

12.01  Art 35 is an exception to the principle that jurisdiction can only be established under the grounds of jurisdiction provided for in the Regulation itself, namely those spelt out in Arts 4 and 7–26 of the Regulation. For provisional and protective measures (hereafter, ‘provisional measures’), the Regulation refers to the national rules of jurisdiction. Thus, even though the court of a Member State may not have jurisdiction under the Regulation over the substance of the matter, it may still grant provisional measures in relation to this matter when such measures are available under its own domestic law. This option offered to the parties presents a risk of circumvention of the jurisdictional scheme of the (p. 358) Regulation,2 which has been addressed by the CJEU through the introduction of certain limits to the power of the court to grant provisional measures when it does not have jurisdiction as to substance.

12.02  Art 35 is drafted in nearly identical terms to the corresponding provision in the 2001 Regulation (Art 31) and in the Brussels Convention (Art 24). The only minor difference is that the latter provisions refer, at the end of the (single) sentence, to jurisdiction ‘under this Regulation’: the text provides that the power to grant provisional measures exists ‘even if, “under this Regulation”, the courts of another Member State have jurisdiction as to the substance of the matter’. The words ‘under this Regulation’ were deleted in the Commission Proposal, because its draft Art 36 referred to ‘courts of another State or an arbitral tribunal’.3 This was meant to confirm that the jurisdiction to issue provisional measures exists even if the matter is governed by an arbitral clause. In the end, the reference to ‘arbitral tribunal’ has not been kept in the text, but the words ‘under this Regulation’ have not been reinstated.4 The non-inclusion of these words into the Recast Regulation could still serve the purpose of making clear that the application of Art 35 is not subject to the condition that the jurisdiction of the court of another Member State (on the merits of the case) be established under the provisions of the Regulation themselves. Thus, Art 31 could apply even if such jurisdiction derives from domestic law (because the defendant is domiciled in a third State,5) or from a convention governing jurisdiction or the recognition or enforcement of judgments in relation to particular matters (Art 71).

12.03  Although the text of Art 35 has been left largely untouched, a new Recital (25) has been introduced to clarify that protective orders aimed at obtaining information or preserving evidence are not necessarily excluded from the notion of provisional measures. The purpose of this Recital is both to confirm and to qualify the ruling of the CJEU in St Paul Dairy,6 which held that an application for the pre-trial hearing of witnesses is not caught by what was at the time Art 31 of the Regulation.

12.04  The Heidelberg Report had proposed introducing two additional paragraphs into Art 35. Their respective purposes were, first, to require in principle the providing of a bank guarantee by the claimant who seeks an order for interim performance and, secondly, to establish that the court having jurisdiction as to the substance of the matter has the power to discharge or modify the provisional measure granted by the court of another Member State under the interim jurisdiction basis.7 The authors of the Heidelberg Report had also proposed to make clear that an arbitration agreement does not affect the jurisdiction of a court to grant provisional measures.8 In the Commission’s Report and Green Paper, these issues and various other problems relating to the matter of provisional measures had been discussed,9 including the treatment of protective orders aimed at obtaining evidence, the (p. 359) conditions for the issue of provisional measures spelt out by the CJEU in Van Uden, in particular the requirement of a real connecting link, and the cross-border effect of provisional measures.

12.05  Four of these various issues have finally been identified by the Commission as justifying, in its view, a legislative change to the 2001 Regulation. First, the Commission proposed to introduce a new definition in Art 2 of the Regulation to make clear that provisional measures include protective orders aimed at obtaining information or evidence, together with a new Recital in the Preamble to provide further clarification in evidential matters.10 The definition has been omitted in the final version of Art 2, but the Recital has been preserved with some amendments (Recital (25), reproduced above and further discussed below).

12.06  Secondly, the Commission proposed introducing a new rule for the recognition and enforcement of provisional measures: this rule has also been preserved in the final text, again with some amendments, and it reappears in the definition of judgments in Art 2(a).11

12.07  Thirdly, the Commission had proposed specifying in what is now Art 35 (Art 36 of the Commission Proposal) that the power to grant provisional measures exists even if an arbitral tribunal has jurisdiction as to the substance of the matter. As noted above, this proposal has been rejected by the European Parliament and the Council Working Party,12 and it has not been preserved in the final text. This is not problematic. The change would have only confirmed a solution already upheld by the CJEU in Van Uden,13 and the introduction of a specific reference to arbitration in the text of the Regulation did not sit well with the preservation of the exclusion of arbitration from the scope of the Regulation.

12.08  Fourthly, the Commission had proposed introducing a coordination rule to deal with the situation where an application for provisional measures is made before the court of a Member State when proceedings on the substance are ongoing in another Member State. In that situation, the Commission’s Proposal would have required that the ‘courts concerned shall cooperate in order to ensure proper coordination’.14 This was the remnant of the more far-reaching proposal in the Heidelberg Report, under which the court of a Member State would have received the power to vary an order made in another Member State. The Commission’s Proposal for collaboration between the courts of different Member States in relation to provisional measures was still in itself very novel, and raised a number of delicate questions.15 The rule was abandoned in the course of the discussions in the Council Working Party and European Parliament.16

(p. 360) 12.09  As a consequence of all the foregoing, the changes brought to the matter of provisional measures by the Recast Regulation mainly concern the recognition and enforcement of such measures.17 With respect to the jurisdiction of Member State courts to grant provisional measures, the only meaningful change relates to the application of Art 35 to orders for the gathering of evidence. But even in this respect, the change is more formal than substantial, as will be seen further in Section III in this chapter when reviewing the concept of provisional measures under Art 35. Subject to this point and to the question of the impact, if any, of Art 2(a) of the Recast Regulation on the jurisdiction of the court to grant provisional measures (Section IV in this chapter), the legal regime of Art 35 can be assessed essentially by reference to the existing case law concerning Art 31 of the 2001 Regulation (and Art 24 of the Brussels Convention).

II.  The Two-Track Jurisdictional System for Provisional Measures

12.10  In its decision in the Van Uden case, the CJEU highlighted a very significant distinction as to the basis of the jurisdiction of the court to grant provisional measures: such measures can be granted either by a court having jurisdiction as to the substance of the matter, or by a court which does not have jurisdiction as to substance. When the court has jurisdiction as to the substance of the matter, Art 35 is not engaged: the court having jurisdiction as to the substance also has inherent jurisdiction to issue provisional measures, without any of the restrictions that derive from the application of Art 35. As was held in Van Uden:

the court having jurisdiction as to the substance of a case under one of the heads of jurisdiction laid down in the [Regulation] also has jurisdiction to order any provisional and protective measures, without that jurisdiction being subject to any further conditions.18

12.11  In its Proposal, the Commission had suggested to expressly confirm in the text of the Regulation that Member State courts which have jurisdiction as to the substance of the matter also have jurisdiction to issue provisional measures.19 This rule has understandably been omitted from the final text, as it did not have any normative implications beyond the confirmation of the two-track jurisdictional system for provisional measures.

12.12  Thus, the Van Uden ruling, whose precedential value is not affected on this point by the Recast Regulation, implies that the court having jurisdiction as to the substance is empowered to issue provisional measures without any limitations. There is no need to enquire whether the measures that are granted by such a court meet the conditions to be considered as ‘provisional’. Moreover, it is not necessary to establish any kind of territorial or other connection with that court. The assumption is that the territorial ambit of the jurisdictional power derived from Arts 4 and 7–26 of the Regulation is unlimited. The jurisdictional bases laid down in these provisions are assumed to be sound and in accordance with procedural justice, and can therefore be extended to any kind of decision taken by the court. The only outer limit to the power of the court having jurisdiction as to the substance to issue provisional measures derives from public international law: the court of a Member State cannot (p. 361) issue a provisional measure that encroaches on the sovereignty of another State. Following the traditional Lotus jurisprudence,20 courts cannot exercise their execution power on the territory of another Member State. The issue of whether and when the attachment or freezing of assets may involve such encroachment is subject to discussion.21 These discussions do not concern as such the functioning of the Brussels I regime.

12.13  Art 35 is therefore engaged solely when an application is made for provisional measures before a court which does not have jurisdiction as to the substance of the matter. In Van Uden, the court stated that jurisdiction as to the substance means jurisdiction ‘under one of the heads of jurisdiction laid down in the Regulation’.22 However, the Court also held that Art 35 (Art 24 Brussels Convention) applies when the proceedings as to the substance ‘are to be conducted before arbitrators’.23 In addition, in Solvay v Honeywell, the Court ruled that the application of—now—Art 35 (Art 31 of the 2001 Regulation) is not precluded when the substance of the matter falls within the exclusive jurisdiction of the court of another Member State.24 This is the case even when the substance of the dispute relates to the registration or validity of a patent: while the jurisdiction of the court of the place of registration of the patent is so intense that it applies regardless of the form of proceedings in which the patent’s validity is raised, including when the issue of validity of the patent is raised only incidentally,25 the exclusive jurisdiction of such court does not catch provisional measures, which can still be sought from the courts of other Member States.26

12.14  As noted above, in the Commission Proposal, the Article on provisional measures had been slightly amended to confirm that it applies even when jurisdiction as to the substance lies with an arbitral tribunal. This confirmation of the solution in Van Uden27 has not been kept in the final text, although Art 35 does drop the reference to the jurisdiction of the other court being established ‘under the Regulation’. Thus, Art 35 applies as soon as the court seised of the application for a provisional measure does not, for whatever reason, have (p. 362) jurisdiction as to the substance of the matter under one of the heads of jurisdiction of the Regulation. Van Uden and Solvay make clear that it does not matter on what basis jurisdiction exists: the nature of and the bases for jurisdiction of the court (or arbitrators) having jurisdiction as to the substance is not relevant for the application of Art 35.

12.15  It is not even required that the substance of the (main) dispute falls within the subject-matter scope of the Regulation. As confirmed in the CJEU’s case law,28 it is enough, for Art 35 to apply, that the provisional measures themselves relate to matters which fall within the subject-matter scope of the Regulation. Thus, an application for provisional measures which, by the nature of the rights which they serve to protect,29 fall within the scope of the Regulation, is governed by Art 35, even though the substance of the dispute between the parties falls outside the scope of the Regulation (eg because the dispute is concerned with a matter specifically excluded from the scope of the Regulation,30 or because it is subject to an arbitration clause31). For instance, it has been held that an application for provisional measures which relate to divorce proceedings (the freezing of assets of one of the spouses) is outside the scope of the Brussels I regime,32 while an application for provisional measures relating to maintenance obligations is within the scope of the Brussels I regime (because these obligations were—at the time— within the scope of the Brussels Convention33), even though the application was made between spouses which were involved in divorce proceedings.34 In other words, to establish whether the provisional measures fall within the scope of the Regulation, reference must be made solely to the matters that are specifically dealt with in the course of the interlocutory proceedings.

12.16  The purpose of Art 35 is to allow the court not having jurisdiction as to substance to grant provisional measures that are ‘available under the law of that Member State’. This is seemingly an unfettered reference to domestic law. However, the CJEU has placed autonomous limits on the operation of domestic law in order to curtail the use of Art 35 and avoid the circumvention of the jurisdictional scheme of the Regulation.35

12.17  The starting point for the application of Art 35 remains domestic law. The availability and conditions for the grant of provisional measures are regulated by the law of the forum from which such measures are sought.36 Art 35 is not a self-standing rule of jurisdiction.37 It is implicit in Van Uden that the jurisdiction of the court is to be founded on the rules of (international) jurisdiction as they apply in the forum State. The CJEU accepted in Van Uden that such rules may include the so-called exorbitant bases of jurisdiction which are otherwise declared inapplicable to establish the jurisdiction on the substance of the matter when the defendant is domiciled in a Member State (Art 5(2)).38 Thus, in principle, an (p. 363) application for provisional measures can be brought, for example, in France based on the French citizenship of the claimant, in Germany on the basis of the presence of a defendant’s assets in Germany (the so-called forum arresti), and in England when the defendant is physically present on the English territory when served with the claim form.39

12.18  However, even when jurisdiction exists under domestic law, the power of the court not having jurisdiction as to substance to issue provisional measures within the framework of the Recast Regulation is subject to certain conditions which apply autonomously. There are two basic conditions. The first is that only measures that have a provisional and protective nature may be granted. This condition is explicit in the wording of Art 35 itself, though the CJEU has elaborated a number of requirements that flow from the notion of provisional and protective measures (Section III in this chapter). The second condition is that there must be a real connecting link between the subject matter of the measures sought and the territorial jurisdiction of the court granting them. This territorial restriction does not appear in the text itself of Art 35. It has been devised by the CJEU as a way to circumvent provisional forum shopping (Section IV in this chapter).

III.  The Notion of Provisional and Protective Measures

12.19  The basic definition of the notion of provisional and protective measures was provided by the CJEU in its 1992 Reichert II ruling and is still valid under the Recast Regulation:

The expression ‘provisional, including protective, measures’ within the meaning of Art [35] must … be understood as referring to measures which, in matters within the scope of the [Regulation], are intended to preserve a factual or legal situation so as to safeguard rights the recognition of which is sought elsewhere from the court having jurisdiction as to the substance of the matter.40

12.20  As this definition makes clear, Art 35 only permits the court to order measures which are intended to preserve the factual or legal situation (Section III.1 in this chapter). In other cases, the CJEU has further identified a requirement that the effects of the measures must be reversible (Section III.2 in this chapter). The Recast Regulation has shed some light on the application of these conditions in the specific context of the collection and preservation of evidence (Section III.3 in this chapter).

1.  The condition that the measures seek to preserve the situation

12.21  The essential element of the definition in Reichert II lies in the condition that the measure be intended to preserve a factual or legal situation. This means that measures which do not pursue this objective cannot be characterized as provisional and protective. Thus, in Reichert II, the CJEU found that the action paulienne of French law, by which the creditor seeks to set aside a transaction which has been performed in fraud of his rights, is not a provisional measure, as it does not seek to preserve the situation.

12.22  The objective of preserving the factual or legal situation is associated, in Reichert II, with the need to safeguard rights the protection of which is sought from the court having jurisdiction (p. 364) as to the substance of the matter. This formulation may give the impression that the application of Art 35 is subject to the condition that proceedings be actually brought on the substance of the case, and that the provision ceases to apply once the court has given judgment on the merits.41 In fact, none of these two apparent limitations seem to have been applied in practice. Art 35 has not been made subject to the condition that the applicant effectively files proceedings on the substance, and the provision has been used as the basis to grant provisional measures in support of the enforcement of the judgment on the substance after such judgment has been issued.42

12.23  Traditionally, in domestic law, three main functions are assigned to interim measures: the ‘preservation function’ (to maintain the status quo until the resolution of the dispute on the substance, through measures such as freezing orders or attachment orders), the ‘preparatory function’ (to facilitate or organize the future resolution of the matter, through measures such as the collection of evidence, the appointment of an expert, or the appointment of a mediator), and the ‘anticipation function’ (to forestall the future decision on the substance, such as an order for an interim payment or, more generally, for interim performance).43

12.24  Based on the traditional definition given in Reichert II, only the ‘preservation function’ appears to be covered by the Brussels I regime: a provisional measure is a measure which seeks to preserve a factual or legal situation. In Van Uden, the CJEU may seem superficially to have accepted that the ‘anticipation function’ is a separate function that provisional measures can fulfil: the court accepted in that case that an application for an interim payment be characterized as a provisional measure, even when the applicant seeks to obtain an amount corresponding to the amount sought as principal relief. There is seemingly no reason to confine this ruling to the payment of a sum of money. It is more broadly the interim performance of the principal obligation, including specific performance, which can be the subject of an application for provisional measures.

12.25  However, the issue of a provisional measure that anticipates the principal relief is subject to strict conditions that have been identified in Van Uden. There are two basic conditions. First, the applicant must demonstrate that the anticipation of the principal relief is ‘necessary to ensure the practice effect of the decision on the substance’ and is ‘justified with regards to the interests involved’.44 In other words, even when the court exercises the ‘anticipation function’, it must be shown that the award of the principal relief on an interim basis is necessary to preserve the position of the applicant in the main proceedings. This would seem to imply, for instance, that the applicant who requests interim performance (outside the forum having jurisdiction as to substance) must demonstrate that the delay in the performance of the main obligation would cause him such harm that the practical effect of (p. 365) the judgment would be lost. In other words, the applicant who seeks an order for interim performance must still show that his application falls within the classical definition of Reichert II. The ‘anticipation function’ is not a free standing function of provisional orders under the Brussels I regime. The court can only anticipate the final relief when it is in accord with the exercise of the ‘preservation function’. This means, for instance, that the interim payment order issued by the English court (pursuant to CPR 25.7) cannot be characterized per se as a provisional measure under the Brussels I regime, as the circumstances in which such an order can be granted show that it is meant only to anticipate the future judgment, without the condition that it be necessary to preserve the effectiveness of such judgment.45 By contrast, in other Member States, the order for an interim payment of money (référé provision) made by the specific magistrate sitting in summary proceedings (juge des référés) is subject to the condition that there is some ‘urgency’, which implies that the claimant shows that he would suffer serious harm if the payment were to be made only at the end of the proceedings on the substance of the matter.46 While the CJEU has never confirmed expressly that the application of Art 35 is subject to the condition of urgency,47 the decision in Van Uden implies, at least when the court exercises the ‘anticipation function’, that the issue of a provisional order is in fact subject to the condition that there are specific reasons to grant immediately the principal relief, without waiting for the end of the proceedings on substance.

12.26  Secondly, an order for interim performance of the principal obligation can only be granted if the court ensures that it is possible to undo the effect of the order if the claimant is finally unsuccessful on the substance (guarantee of repayment in the case of an interim payment). This is the condition of ‘reversibility’ of the effect of the measure, which is a second and separate aspect of the notion of provisional measures under Art 35, as further discussed in Section III.2 in this chapter.

12.27  The third and last function of provisional measures in domestic law is the ‘preparatory function’, which is apparent in particular in respect of the collection of evidence. As has been noted, the application of Art 35 in evidential matters has been the subject of a new Recital (25) in the Regulation. Again, the use of Art 35 in evidential matters has seemingly been made subject to the condition that the order be necessary for the preservation of rights, namely the preservation of the evidence in question. This issue, and more generally the impact of Recital (25) of the Recast Regulation, is discussed in more detail in Section III.3 in this chapter.

(p. 366) 2.  The condition of ‘reversibility’ of the effect of the measure

12.28  In its judgment in Denilauler, the CJEU noted that the court must ‘make its authorisation [of provisional measures] subject to all conditions guaranteeing the provisional or protective character of the measure ordered’.48 The CJEU gave examples of conditions that can be imposed to ensure this provisional character of the order: ‘depending on each case and commercial practices [ … ] the court must be able to place a time-limit on its order or, as regards the nature of the assets of goods subject to the measures contemplated, require bank guarantees or nominate a sequestrator’.49

12.29  This condition appears to be distinct from the aforementioned condition that the measure can only seek to preserve the factual or legal situation. While the latter condition is intended to bring a restriction in respect of the objective that the measure must seek to achieve (namely, the preservation of the status quo), the imposition of limits ensuring the provisional character of the order implies that the contents of the measure itself are circumscribed or accompanied by conditions to ensure that its effects can be reversed if necessary (ie if the applicant is ultimately unsuccessful). The CJEU has further elaborated on the meaning of the latter restriction in Van Uden. The CJEU acknowledged in this case that an order for an interim payment is problematic because, by its very nature, it ‘may preempt the decision on the substance of the case’.50 As a consequence, such an order cannot constitute a provisional measure unless:

first, repayment to the defendant of the sum awarded is guaranteed if the plaintiff is unsuccessful as regards the substance of his claim and, secondly, the measure sought relates only to specific assets of the defendant located or to be located within the confines of the territorial jurisdiction of the court to which application is made.51

12.30  In substance, the court requires the effect of the measure to be reversible. The order for provisional measures cannot produce effects which are final and definitive for the defendant. Consequently, there must be a ‘guarantee’ to be able to return to the status quo ante if the decision on the substance goes against the party who has obtained the provisional measure. In relation to an order for interim payment, this implies that there is a guarantee of repayment, and that the order only concerns assets within the territory of the court. As is apparent from the ruling of the Court of Justice, the latter condition is designed to ensure compliance with the requirement of reversibility: imposing the condition that assets be located within the territory of the granting court is meant to ensure that the defendant will have access to some resources in this territory which guarantee that he will get his money back if he is ultimately successful.52 For this guarantee to be effective, the assets need to (p. 367) remain within the territory of the forum State, and indeed it is submitted that this condition is implicit in the requirement that the order concerns only assets (to be) located within the confines of the territory of the forum State. To comply with the condition, the court can specify that the order for interim payment can only be executed on assets (to be located) within the territory of the forum State. But there may be other ways to satisfy the condition, such as the provision by the applicant of a collateral or other form of security, including a bank guarantee. Provided that the defendant, if ultimately successful, can have recourse to that security directly in the forum State, it can be considered that some form of assets are located in that territory, and that the Van Uden condition is met.

12.31  Thus, the presence of assets within the territory of the forum State becomes part of the definition of the notion of provisional measures, but only in relation to an order for an interim payment. The Van Uden condition that is discussed here should not be confused with the separate and more general requirement in Van Uden that a territorial connection between the subject matter of the provisional measures and the forum State is needed; the latter condition is further discussed in Section IV in this chapter.

12.32  By their very nature, some measures appear per se to comply with the condition of reversibility. For instance, freezing orders or attachment orders can be lifted at any time by the court. By themselves, such orders do not affect in any final way the ownership or possession of the assets. However, the effect produced by these orders may sometimes be very serious and far-reaching (this is the case, for instance, in respect of worldwide freezing injunctions), and the requirement to preserve the possibility to go back to the status quo ante may justify that guarantees be required to ensure that the harm caused to the defendant by the provisional injunction be compensated in the event that the defendant is ultimately successful.53 However, in respect of such measures, which by their nature appear to be reversible, the court has some discretion as to whether additional conditions to reinforce the provisional character of the order should be imposed or not.

12.33  Other kinds of measures appear to go beyond the requirement of the provisional character of the order. In particular, it has been questioned in legal writing how an order that anticipates the principal relief can ever be properly characterized as a provisional measure.54 Yet, as already noted, the CJEU has taken the position that such orders are not necessarily excluded from the notion of provisional measures, though they can only comply with the notion if the court imposes strict limits to ensure that the effects of the order can be reversed if necessary, in case the applicant is unsuccessful on the merits. Without such limits, the effect of the measure is not reversible, and it can only be ordered by the court having jurisdiction as to the substance of the matter. It follows from Van Uden that in respect of such measures, and in particular an order for interim payment, the court acting under Art 35 has no discretion: it must impose the limits identified by the CJEU.

(p. 368) 3.  The specific case of evidential measures

12.34  Recital (25) of the Preamble of the Regulation contains a new interpretation of the notion of provisional measures in the specific context of the gathering of evidence. According to Recital (25), the notion ‘should include, for example, protective orders aimed at obtaining information or preserving evidence’. Reference is made in particular to orders granted in relation to the application of Directive 2004/48/EC on the enforcement of intellectual property rights. Recital (25) adds that, by contrast, the notion of provisional measures ‘should not include measures which are not of a protective nature, such as measures ordering the hearing of a witness’. It is also emphasized that this is without prejudice to the application of the Evidence Regulation.55

12.35  This provision reflects the ruling of the CJEU in St Paul Dairy, but also brings some nuances to the matter. In St Paul Dairy, the CJEU ruled that the notion of provisional measures does not cover ‘a measure ordering the hearing of a witness for the purpose of enabling the applicant to decide whether to bring a case’.56 It has sometimes been suggested that this case implies quite a wide exclusion of evidential measures from the notion of provisional measures.57 In fact, the meaning of St Paul Dairy is that the application of what was then Art 31 of the 2001 Regulation depends on the aim pursued by the applicant and the interests that he seeks to protect. If the applicant can establish that, through the evidential measure, he seeks to preserve a factual or legal situation, or if he can show that there is some interest to protect that goes beyond the mere attempt to decipher whether it is worth bringing an action on the merits, then the evidential measure can be characterized as a provisional measure. Recital (25) confirms the validity of this approach: in relation to measures such as the hearing of a witness (as in St Paul Dairy), it is now specified expressly that such a measure cannot have a ‘protective’ nature. However, it is also confirmed, by reference to the example of intellectual property matters, that the notion of provisional measures can also encompass ‘orders aimed at obtaining information’. Recital (25) mentions, in particular, measures that are taken under Art 6 and 7 of Directive 2004/48. Yet, if Art 7 of this Directive relates to measures for ‘preserving evidence’, Art 6 concerns more generally the gathering of evidence, including the collection of banking, financial, or commercial documents, when the applicant presents sufficient evidence to support his claim and identify the specified evidence that he is seeking to collect. Ultimately, the position may therefore not be very different from the one provided in the Commission Proposal, where an explicit provision (in Art 2) stated that provisional measures ‘shall include protective measures aimed at obtaining information and evidence’.

12.36  It follows from the foregoing that the exclusion of evidential measures from Art 35 concerns essentially the ‘fishing expedition’ type of application, by which the applicant seeks to identify any evidence that may exist (or not) in order to assess whether he wishes to pursue proceedings on the substance or on which basis, without any more direct interest in the application. A more direct and specific interest that could be invoked by the applicant to justify the application of Art 35 would be the preservation of the evidence. If there is a risk that the evidence could be destroyed, tampered with, or undermined in any way, this (p. 369) should be sufficient to establish that Art 35 applies. Likewise, the provision should apply to the appointment of an expert when there is some urgency that the expert’s investigations be carried out. The same should apply to an application for the disclosure of documents: if there is a risk that the documents will not be obtained at a later stage, this again should be sufficient to trigger the application of Art 35. In each of these situations, the evidential measure that is sought appears to fall squarely within ‘the preservation function’ that Reichert I has assigned to provisional measures (Section III.1 in this chapter).

12.37  However, in view of Recital (25), the application of Art 35 could be justified in evidential matters beyond the situations where there is a need to preserve the evidence. Art 35 could apply whenever the intervention of a court other than the court having jurisdiction as to the substance is required to ensure the effectiveness of the measure. For instance, if the effectiveness of the measure depends on the possibility of obtaining an ex parte order directly from the court of the place where the order is to be executed, without the other party being informed of the order, then again Art 35 should be available. The reference by Recital (25) to the matter of the enforcement of intellectual property, where the effect of surprise is often paramount for the effectiveness of the measures, confirms the validity of this interpretation. The importance of keeping this option open is still reinforced by the limits placed by the Recast Regulation on the recognition and enforcement of ex parte provisional orders, even when they are ordered by the court which has jurisdiction as to the substance of the matter (see above under Art 2(a)).

12.38  Recital (25) also states that the interpretation of the notion of provisional measures in this matter is ‘without prejudice’ to the application of the Evidence Regulation 1206/2001. This point is self-evident, and should not materially affect the relationship between the Evidence Regulation and the Recast Regulation. In particular, the entry into force of the Recast Regulation does not change the decisions in Lippens58 and Prorail:59 in these cases, the CJEU ruled that, when an application is made before the court having jurisdiction as to the substance (which is not the case when Art 35 applies), such court is not required to use the procedures of the Evidence Regulation to collect evidence in another Member State, including when it issues an injunction for the hearing of a witness or the carrying out of an expert investigation on the territory of that Member State.60

IV.  The Territorial Restriction

12.39  The second condition for the issue of a provisional order under Art 35 of the Regulation is that there must be a territorial connection between the subject matter of the measures sought and the forum granting them. This condition is not explicit in the text of Art 35.61 It (p. 370) was introduced by the CJEU in Van Uden, as a way to limit ‘provisional forum shopping’. According to an often-cited passage from Van Uden:

the granting of provisional or protective measures on the basis of Art [35] is conditional on, inter alia, the existence of a real connecting link between the subject-matter of the measures sought and the territorial jurisdiction of the [Member] State before which those measures are sought.62

12.40  As noted above, this condition should not be confused with the requirement that an order for interim payment relates solely to assets located within the territory of the forum State. The latter requirement is part of the definition of the notion of provisional and protective measures for the purpose of ensuring that the effects of such an order are reversible. It is specific to orders for interim payment (or possibly to the category of orders for interim performance of the principal obligation).

12.41  The condition that is discussed here is more general, but also more flexible: it is not required that the order relates only to assets within the territory of the forum State, but that there is a ‘real connecting link’ between the subject matter of the measures and the territory of the forum State. The CJEU has not explained what is meant by ‘real connecting link’. Two main approaches have been advocated, reflecting different understandings of the word ‘real’.63 The first one is that there must be a connection between the ‘thing’ (res) which is the subject matter of the order, and the forum State. This interpretation could support the argument that the condition only concerns provisional measures which take effect in rem, such as the attachment of assets (for instance, a French saisie conservatoire). Orders which operate in personam—such as freezing orders or disclosure orders—would not be affected by this restriction, or at least the condition would be satisfied as soon as the court has personal jurisdiction over the defendant.64 The second interpretation is that the connection of provisional measures with the forum State must be real, ie ‘effective’.65 This interpretation implies that the condition has a broader application: it would concern both the orders which take effect in rem and the orders which operate in personam. It is suggested that this is the better view, and that the requirement has a wide scope of application which concerns all kinds of provisional measures, irrespective of their specific features under domestic law. The requirement is that the measure itself, whatever its nature, must have a meaningful connection with the forum State to warrant the intervention of the court of that State, as a way to limit provisional forum shopping. This approach seems to have been upheld by the English (p. 371) Court of Appeal in Banco Nacional,66 where the Court refused to make a worldwide freezing order on the basis that there was no real connecting link between the subject matter of the measure, directed at assets located abroad, and the English territory.67

12.42  The condition of the ‘real connecting link’ is clearly satisfied when the measure concerns only assets, persons, and/or activities (to be) located entirely within the territory of the forum State, and the order can be enforced entirely locally. By contrast, the condition is clearly not satisfied when the measure concerns solely assets, persons, or activities located entirely abroad, and the order can only be executed wholly outside the territory of the forum State. For instance, the Cour de cassation held that the French courts cannot issue an order for the conduct of an expert investigation that is to be carried out entirely in England.68

12.43  When the measure presents, by its subject matter (eg assets, persons, activities, or otherwise) a meaningful connection both with the territory of the forum State and with other territories, the court must assess whether the measure has, as a whole, sufficient points of contact with the forum State to establish that the real connecting link requirement is satisfied. There is some form of discretion here. If the court considers that there is a real connecting link, jurisdiction can be confirmed on the basis of Art 35, and under Van Uden, the scope of such order is not limited to the territory of the forum State.69 Provided that the connection between the subject matter of the measure70 and the court is not insignificant or artificial, the Van Uden test is met, and the order may concern assets, persons, or activities both within the forum State and in other States.71

12.44  In the course of the preparatory work on the Recast Regulation, the proposal had been made to discard this condition of Van Uden, or at least to convert the real connecting link from a condition for the grant of provisional measures to a mere factor to be taken into account by the court exercising its powers under Art 35.72 It had been proposed in legal writing, for instance, to clarify in a new Recital that the issue of provisional measures does not necessarily require the existence of a connection to the territory of the granting court, though such court should take into account all the circumstances of the case (including whether there is a real connecting link between the measure sought and the forum State) and the likely impact of the measure on proceedings pending or to be issued in another Member State.73 The purpose of this proposal was to provide more flexibility and discretion in the grant of cross-border provisional measures.

(p. 372) 12.45  This proposal was not adopted, either by the Commission or in the Regulation in its final form. As noted, the only relevant change in respect of the application of Art 35 concerns the interpretation of the notion of provisional measures in respect of evidential matters. There is nothing in the text of the Regulation which suggests that the Van Uden condition of a real connecting link for the grant of a provisional measure has been removed or softened in any way.

12.46  By contrast, there may be an open question as to whether the Recast Regulation actually tightens the territorial link requirement for the issue of provisional measures by the court which does not have jurisdiction as to the substance of the matter. This is the question of the impact, if any, of the new Art 2(a) on the application of Art 35. Art 2(a) introduces new restrictions to the circulation of provisional measures. As noted in the comments on Art 2(a), these restrictions are meant to concern the rules on the recognition and enforcement under Chapter III of the Regulation. The definition in Art 2(a) does not at least apparently, relate to the issue of jurisdiction of the court to grant a provisional measure under Art 35. In other words, the new restrictions of Art 2(a) appear to concern only the position in the requested Member State, where the recognition or enforcement of an order is sought, and not in the Member State of origin where the order is issued.

12.47  However, Recital (33) of the Regulation casts doubts on the matter. This Recital provides that when the provisional measures are ordered by a court of a Member State not having jurisdiction as to the substance of the matter, ‘the effect’ of such measures ‘should be confined, under this Regulation, to the territory of that Member State’. The territorial restriction is formulated in terms of a limitation to the effect of the measures. If this restriction was to be treated as being addressed also to the granting court, it would preclude such court from issuing provisional measures that produce cross-border effects. The restriction would be far more significant than the Van Uden requirement of a real connecting link, which does not (as discussed) prohibit the issue of cross-border provisional measures when there is a meaningful connection with the forum State.

12.48  At this stage, it appears premature to conclude that this is how Recital (33) should be understood. When referring to the ‘effect’ of the provisional measure beyond the territory of the forum State, it is possible that Recital (33) only refers to the issue of the recognition and enforcement of such measures. A cross-border provisional measure may be of interest to the applicant without the need to go through the process of recognition and enforcement of the measure in other Member States. The compliance with the provisional measure may be voluntary, or may be obtained through indirect means of persuasion or even coercion, such as the application of sanctions, which can be executed in the forum State. In common law jurisdictions, the sanction for non-compliance with a provisional order can take the form of a finding of contempt of court74 and in civil law jurisdictions it can lead to the imposition of monetary penalties (astreintes). In both cases, such sanctions can potentially be executed within the territory of the forum State, or at least can prevent the defendant from being present, holding assets, or carrying out any activities within such State, which may be a powerful deterrent ensuring compliance with the order.75

Footnotes:

1  Commentary by Arnaud Nuyts.

2  A Dickinson, ‘Provisional Measures in the “Brussels I” Review: Disturbing the Status Quo?’ (2010) J Priv Int L 6: 519, 521.

3  Commission Proposal, Art 31.

4  Council document 10027/12 ADD 1 [16 May 2012], draft Art 36; EP Final Report, Art 36.

5  Art 6(1). The issue of whether Art 31 of the 2001 Regulation applies when the defendant is domiciled in a third State is the subject of some discussions, eg M Pertegas, in Magnus & Mankowski, Art 31, [7]‌–[8].

6  Case C-104/03, St Paul Dairy Industries NV v Unibel Exser BVBA [2005] ECR I-3581. Recital (25) is discussed in further details in Section 1.X.5.C in this volume and in Section III.3 in this chapter.

7  Heidelberg Report, [654].

8  Heidelberg Report, [653].

9  Commission Report, [8]‌–[9]; Green Paper, [8].

10  Commission Proposal, Recital (25).

11  Art 2(a) (Section 2.II.1 in this volume).

12  Text to n 4 above.

13  12.13 below; also Section 2.II in this volume.

14  Commission Proposal, Art 31.

15  Eg what are the respective roles of the courts and of the parties in the coordination exercise? What means of communications are to be used? What is the meaning and the goal of the ‘proper coordination’ between the courts? Who has the final word if there is a disagreement between the two competing courts, including in respect of assets located on the territory of the local court?

16  Art 31 of the Commission Proposal attracted criticism from a number of Member States in the Working Party (Council document 12439/11 [5 July 2011], 2 and Council document 14711/11 [27 September 2011], 4. Other Member States suggested that it be moved to the section on provisional measures. It disappeared from later drafts (eg Council document 8396/12 [2 April 2012].

17  This aspect of the subject is discussed in the commentary to Art 2(a) in Section 2.II.1 in this volume.

18  Case C-391/95, Van Uden Maritime BV v Kommanditgesellschaft in Firma Deco-Line [1998] ECR I-1709, [22]; Case C-99/96, Mietz v Intership Yachting Sneek BV [1999] ECR I-2277, [41].

19  Commission Proposal, Art 35.

20  The ‘Lotus’ [France v Turkey], PCIJ Series A No 10.

21  Under English case law, provisional orders which produce their effect in personam, such as freezing injunctions, disclosure orders, or receivership orders, are not considered to raise any issue of public international law or international comity provided that the case has some appropriate connection with England, that the court did not purport to affect title to property abroad, and that the court did not seek to control the activities abroad of foreigners who were not subject to the personal jurisdiction of the English court (eg Masri v Consolidated Contractors International UK Ltd (No 2) [2008] EWCA Civ 303, [2009] QB 640, [35]–[39] (Lord Collins). But in Société Eram Shipping Co Ltd v Cie Internationale de Navigation [2003] UKHL 30, [2004] 1 AC 260, the House of Lords held that a third-party debt order (formerly known as garnishee order), as a proprietary remedy which operates by way of attachment of the property, is inconsistent with the comity of the foreign court and infringes principles of international law if the debt is situated abroad. This decision implies that an order of this nature (operating under English law as a final measure of enforcement rather than a provisional measure) cannot be made in respect of a foreign situated debt even when the court has jurisdiction as to the substance of the matter. For recent scholarly discussion, see R Fentiman, International Commercial Litigation (Oxford: Oxford University Press, 2010), [18.03]–[18.04].

22  Van Uden (n 18), [22].

23  Van Uden (n 18), [34].

24  Case C-616/10, Solvay v Honeywell Fluorine Products Europe BV [2012] ECLI:EU:C:2012:445, [51].

25  Case C-4/03, GAR Gesellschaft für Antriebstechnik mdH v Luk Lamellen- und Kupplungsbau Beteligungs KG [2006] ECR I-6509.

26  Solvay v Honeywell (n 24), [43]–[50] (finding that there is no risk of conflicting decisions between the provisional decision taken by the court before which the interim proceedings have been brought and the decision to be taken on the substance by the court having jurisdiction under Art 24(4) of the 2001 Regulation).

27  Van Uden (n 18), [34].

28  Case 25/81, CHW v GJH [1982] ECR 1189; Case 143/78, de Cavel I [1979] ECR 1055, [9]‌; Case 120/79, de Cavel II [1980] ECR 731; Van Uden (n 18), [33].

29  Van Uden (n 18), [33].

30  CHW v GJH (n 28); de Cavel I (n 28), [9]‌.

31  Van Uden (n 18), [33].

32  de Cavel II (n 28).

33  Following the adoption of the Maintenance Regulation (No 4/2009), the matter of maintenance obligations arising from a family relationship, parentage, marriage, or affinity has been excluded from the scope of the 2001 Regulation (and from the Recast Regulation): see Art 1(2)(e).

34  de Cavel I (n 28).

35  Dickinson, ‘Provisional Measures’ (n 2), 521.

36  Dickinson, ‘Provisional Measures’ (n 2), 521.

37  Cf Pertegas, in Magnus & Mankowski, Art 31, [4]‌.

38  The CJEU has noted that the prohibition in what is now Art 5(2) to rely on the rules of exorbitant jurisdiction ‘does not apply to the special regime provided for by Art [35]’: Van Uden (n 18), [42].

39  These are the three classical exorbitant bases of jurisdiction that can be found in domestic law.

40  Case C-261/90, Reichert and Kockler v Dresdner Bank AG [1992] ECR I-2149, [34].

41  Pertegas, in Magnus & Mankowski, Art 31, [19].

42  Masri v Consolidated Contractors (No 2), (n 21), [106], where the Court of Appeal ruled that post-judgment orders that operate in personam for the purpose of assisting in the enforcement of the judgment, such as freezing orders, disclosure orders, or receivership orders, can be characterized as provisional measures under what is now Art 35 because the relief that is sought is intended to safeguard the rights which have been vindicated in the judgment on the substance. The characterization of a post-judgment freezing injunction as a provisional measure under Art 35 has also been upheld by the French Cour de cassation in the Stolzenberg case: Cass Civ, 1 30 June 2004 [2004] D.2743; [2004] Rev Crit DIP 815.

43  J Normand, ‘Les mesures provisoires en droit comparé’, [2005] Annales de droits de Louvain 265; G de Leval, La jurisprudence du Code judiciaire commentée—La compétence (Bruges: la Charte, 2011), [131]–[133].

44  Van Uden (n 18), [45].

45  These circumstances include eg the admission of liability by the defendant, the rendering of a judgment for damages still to be assessed, and the fact that the court is satisfied that the claimant would obtain a judgment for a substantial amount of money (CPR 25.7(1)(a)–(c)).

46  In Belgium, Cass, 4 November 2003, [2004] RRD 52; J Englebert, ‘Le référé judiciaire: principes et questions de procédure’ in J Englebert and M H Bolarbah (eds), Le référé judiciaire (Bruxelles: éditions du Conférence du Jeune Barreau de Bruxelles, 2003), [45]. Compare with the situation in France, where the applicant must only establish that the obligation to pay the sum of money cannot be seriously contested, without the condition of urgency: Art 809(2) of the Code of Civil Procedure (nouveau Code de procédure civile); J Vincent and S Guinchard, Procédure civile (26th edn, Paris: Dalloz, 2001), [245].

47  The application of this condition is discussed in legal writing. See Pertegas, in Magnus & Mankowski, Art 31, [20]–[21]. In Case C-80/00, Italian Leather SpA v WECO Polstermöbel GmbH & Co [2002] ECR I-4995, the CJEU noted the diverging national procedural rules on the condition of urgency but did not rule on the possible existence of an autonomous condition of urgency for the application of Art 35.

48  Case 125/79, Bernard Denilauler v SNC Couchet Frères [1980] ECR I-1553, [15].

49  Denilauler (n 48), [15].

50  Van Uden (n 18), [46].

51  Van Uden (n 18), [47]; also Mietz (n 18), [42].

52  There is some confusion in legal writing as to the purpose of the requirement. Eg Heidelberg Report, [616], noting that ‘nobody has been able so far to explain how a payment order could ever be restricted to specific assets of the defendant located or to be located [within a certain territory]. It seems that adhering to this requirement completely disregards the context of payment orders given in référé provsion or in kort geding proceedings.’; Layton & Mercer, [23.014], who consider that the condition is designed to ensure that assets on the territory constitute a resource from which the claimant can be temporarily satisfied pending the outcome of his claim. It is suggested that the better view, considering that the requirement is part of the CJEU’s analysis of the condition of reversibility of the order, is that the applicant must demonstrate, in principle, that the order for payment can be executed on assets (to be) located within the territory of the forum State so that such assets remain as security for the defendant in the event that he is ultimately successful. See also Dickinson, ‘Provisional Measures’ (n 2), [548], who notes that ‘the ECJ’s test in Van Uden makes sense if the interim payment is to be from a specific fund or from the disposal of specific assets, or if the court may impose a condition that the order is not to be enforced outside of the jurisdiction, but not otherwise’.

53  Layton & Mercer, [23.014], who note that the practice in respect of English freezing orders granted on the application of a claimant outside the jurisdiction, requiring security for the cross-undertaking in damages, may need to be extended to any case where an interim order (including a freezing order) is made on the basis of Art 31.

54  See the very subtle analysis of A Huet, [1989] JDI 96; Gaudemet-Tallon, [308].

55  As to the relationship between the Recast Regulation and the Evidence Regulation, see Section 1.X.5.C in this volume.

56  St Paul Dairy (n 6), [final para].

57  E Pataut [2005] Rev Crit DIP 742, [750].

58  Case C-170/11, Lippens v Kortekaas [2012] ECLI:EU:C:2012:540.

59  Case C-332/11, ProRail BV v Xpedys NV [2013] ECLI:EU:C:2013:87.

60  Unless the carrying out of the measure affects the power of the Member State in which it takes place: ProRail (n 59), [47]. This restriction has been construed narrowly by the English Court of Appeal in the joint cases of Secretary of State for Health v Servier Laboratories Ltd and National Grid Electricity Transmission Plc v ABB Ltd [2013] EWCA Civ 1234. For a critical analysis of this jurisprudence, see A Nuyts ‘Les arrêts Lippens et ProRail: retour sur l’exclusivité de la réglementation européenne de collecte des preuves’, [2014] Journal des tribunaux 557.

61  A proposal to introduce wording to this effect into what is now Art 35 was advanced, but rejected, in the Council Working Party during the recasting process (Council document 67915/12 [24 February 2012], draft Art 36 (‘insofar as a real connecting link exists between the subject-matter of the measures sought and the territorial jurisdiction of the Member State of the court before which those measures are sought’).

62  Van Uden (n 18), [40].

63  H Boularbah, ‘Les mesures provisoires en droit commercial international: développements récents au regard des Conventions de Bruxelles et de Lugano’ [1999] Revue de droit commercial 604, 607; Dickinson, ‘Provisional Measures’ (n 2), 547–8; C Heinze ‘Choice of Court Agreements, Coordination of Proceedings and Provisional Measures in the Reform of the Brussels I Regulation’ (2010) Rabels Z 74: 581, 609; Heidelberg Report, [614]–[616]; Layton & Mercer, [23.017]; Gaudemet-Tallon, [311]; Fentiman, International Commercial Litigation (n 21), [1.85]–[1.86].

64  This approach seems to have been adopted by the English Court of Appeal (Lord Collins) in Masri v Consolidated Contractors (No 2) (n 21). The Court held that there was in that case a sufficient connecting link between the subject matter of the measures and the territorial jurisdiction of the UK ‘because of the in personam nature of the relief and the court’s personal jurisdiction over [the defendant]’. See also Dicey & Morris, [8.031].

65  In most languages, the first word in the expression ‘real connecting link’ is the literal translation of ‘real’ (in French ‘réel’, in German ‘reale’, in Dutch ‘reële’), but in the Italian language the word used is ‘effettivo’, which denotes the condition of effectiveness of the connection, and not necessarily the requirement of a connection with a ‘thing’.

66  Banco Nacional de Commercio Exterior SNC v Empresa de Telecommunicaciones de Cuba SA [2007] EWCA Civ 622, [2007] 1 WLR 1936.

67  Cf Masri v Consolidated Contractors (No 2) (n 21), discussed in n 64 above.

68  Cass, 11 December 2001, Virgin Atlantic Airways v GIE Airbus Industries, [2002] Rev Crit DIP 371, note H Muir Watt.

69  Unless the order is for an interim payment, which triggers the application of the specific requirement that the order can only concern assets (to be) located within the territory of the forum State: see above.

70  It is not enough to show that the parties, the dispute, or the case as a whole has or have a real connecting link with the forum State. Van Uden requires that a connection be established between the subject matter of the measure itself and the forum State. This aspect of Van Uden is sometimes overlooked in case law. For instance, the condition is not acknowledged in Masri v Consolidated Contractors (No 2) (n 39).

71  Pertegas, in Magnus & Mankowski, Art 31, [29].

72  Heidelberg Report, [614]–[616]; Dickinson, ‘Provisional Measures’ (n 2), 547.

73  Dickinson, ‘Provisional Measures’ (n 2), 550.

74  This is the case at least for non-compliance with an injunction directed at a person mandating or prohibiting specific acts.

75  It remains to be seen whether the new system of direct execution (without exequatur) under the Recast Regulation can be used in relation to a decision which determines the amount of the payment due by way of penalty (astreinte) pursuant to Art 55 of the Regulation (Section 13.V.5 in this volume) when the penalty has been applied for the non-compliance with a cross-border provisional order.