EUPillar NV A. v. GmbH T.-P. - KG Kh. Hasselt, 30 March 2005

Summary

The parties do not contest that the Brussels I Regulation is applicable. Art. 31 Brussels I provides that “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 State, even if, under this Regulation, the courts of another Member State have jurisdiction as to the substance of the matter.” In the Denilauler and Van Uden cases, the ECJ defined the territorial requirement. In particular in Van Uden, where the ECJ decided that on a proper construction, the granting of provisional or protective measures on the basis of [Art. 31 Brussels I] 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 Contracting State of the court before which those measures are sought. There is some discussion among legal authors on the “real connecting link”. It seems advisable to opt for a broad interpretation. In the document instituting the proceedings, the plaintiff cite its fear that a faulty design is to blame for the malfunctioning of the crane. This means is not implausible that the judicial expert will have to examine not only the cranes which are set up in The Netherlands, but also the cranes set up by the same company in Belgium. Even if the object of the measure sought by the plaintiff is a crane set up in The Netherlands and certain observations will have to take place in The Netherlands, the Belgian courts too have jurisdiction pursuant to Art. 31 Brussels I, since it is not unlikely that the judicial expert will also have to make observations in Belgium. SHORT CRITIQUE The president of the Hasselt Commercial Court considers that Art. 31 Brussels I offers an additional jurisdictional ground, apart from Arts. 23 and 2. The president correctly refers to the requirements imposed by the ECJ in the Denilauler and Van Uden judgments, in particular the "real connecting link" requirement. The president recognises that to establish jurisdiction over the request to appoint a judicial expert, at least part of that expert's mission would have to be carried out in Belgium. The damage in this case occurred only in The Netherlands. However, the plaintiff fears the malfunctioning of the crane which caused the damage might be due to a faulty design, so that the expert "might" have to examine other cranes set up by the same company. The president deems that the real connecting link is established on that basis. To us, that seems rather tenuous. The president does make use of the Evidence Regulation and addresses a request to the relevant Dutch authorities, pursuant to Art. 17.