EUPillar OLG München, 19.2.2014

Summary

The parties argued about damage claims. Within the dispute they particularly argued about the proceedings for the preservation of evidence which had been ordered by a French court. It was doubtful whether this kind of proceedings fell within the scope of application of Brussels I. The court held that the expert opinion ordered within the proceedings of ‘ordonnance de référé’ pursuant to Art. 145, 872 Code de procedure civile (CPC) fell within the Regulation’s scope of application even if they didn’t result in a recognizable ‘judgment’ within the meaning of Art. 32 et seq. Brussels I. The court further held that German courts had no international jurisdiction because of Art. 27 (2) Brussels I if proceedings for the preservation of evidence regarding the same issues of evidence had been ordered by a German court when the proceedings of ‘ordonnance de référé’ were still in progress. In scientific literature it is disputed whether proceedings for the preservation of evidence fall within the Regulation’s scope of application. Some say they weren’t adversarial proceedings of judicial nature and therefore should be excluded from the scope of application. The court on the other hand argued that Brussels I generally also applied to proceedings that didn’t result in a judgment. It further referred to a CJEU judgment regarding Art. 24 of the European Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters where the Court didn’t deny the applicability of the rule because of the fact that there were proceedings for the preservation of evidence but actually examined whether those proceedings were ‘provisional measures’ within the rule that had been applied in that case. It is not clear whether the judgment can be considered correct.