EUPillar Engel Austria GmbH v. NV I.P.M. - C.08.0480.N

Summary

The dispute is concerned with the termination of an exclusive distribution agreement. The parties included a choice of court clause in favour of the courts of Linz in Austria in their contract. The clause was considered valid by the first judge (cf. Art. 23(1)(a) Brussels I Regulation). The Belgian defendant subsequently asked for and obtained the appointment of an expert as a provisional measure pursuant to Art. 31 Brussels I Regulation. The expert was charged with the task to calculate the gross margin delivered by the concession contract over the last five years and the value added by the clientele who was brought on by the defendant. On appeal, the Court of Appeal of Ghent had decided that the measure was justified since it would contribute to a smoother resolution of the case as to its substance; and that the expert would have to carry out its mission on Belgian territory. The Court of Cassation decides otherwise. The expression ‘provisional, including protective, measures’ within the meaning of Article 31 of the Regulation is to be understood as referring to measures which are intended to preserve a factual or legal situation so as to safeguard rights the recognition of which is otherwise sought from the court having jurisdiction as to the substance of the case. A measure which aims to allow the applicant to assess the chances or risks of proceedings and, moreover, to collect evidence which is not at risk of being lost, is manifestly not a provisional or protective measure within the meaning of Art. 31. SHORT CRITIQUE The Supreme Court correctly applies the St Paul Dairy case of th CJEU.