EUPillar NV E. v. BVBA E. & M., L. and B.V. De B.M. - C/02/052

Summary

E. NV installs an industrial hall in Sittard, The Netherlands at the request and on account of P. E&M BVBA is a subcontractor for the floor and tile works. It bought the tiles from L. At his turn, L. bought the tiles from D. BV. E. NV argues that the placement of the floors is unsatisfactory. It is not clear at present whether the alleged problem is due to the quality of the tiles or to the placement. Because of this, E. is in dispute with its client and risks having to pay high sums in compensation. E. NV asks for the appointment of an expert. Neither L. nor E&M BVBA are opposed to this measure. D. BV objects on the grounds that the Court does not have international jurisdiction over this matter since the expert would have to carry out its examination on Dutch territory. The Court decides that the Belgian courts have jurisdiction even over the subject of the matter in proceedings between L. and D. BV on the basis of Art. 6(2) Brussels I Regulation, especially since L. and D. BV did not agree on a choice of court. It is accepted that a court having jurisdiction as to the substance of a case in accordance with Articles 2 and 5 to 18 of the Convention also has jurisdiction to order any provisional or protective measures which may prove necessary (ECJ, C-391/95 Van Uden, §19), without further conditions. SHORT CRITIQUE This is one of the very first decisions where the Brussels I Regulation was applied by the Belgian courts. The president of the Hasselt Commercial Court was asked in summary proceedings to appoint an expert to take evidence. The President finds that it has jurisdiction over the Dutch defendant on the basis of Art. 6(2). He correctly states that he is therefore allowed to take any protective measure without further conditions, including extra-territorial measures. Only the taking of provisional measures by a court which does not have jurisdiction as to the substance is regulated by art. 31 Brussels I.