OPINION OF ADVOCATE GENERAL

JÄÄSKINEN

delivered on 6 September 2012 ( 1 )

Case C-332/11

ProRail NV

Xpedys NV,

FAG Kugelfischer GmbH,

DB Schenker Rail Nederland NV,

Nationale Maatschappij der Belgische Spoorwegen NV

(Reference for a preliminary ruling from the Hof van Cassatie (Belgium))

‛Judicial cooperation in civil or commercial matters — Taking of evidence — Regulation (EC) No 1206/2001 — Article 1 — Substantive scope — Article 17 — Direct taking of evidence by the requesting court — Designation of an expert and the assignment to him, by a court of one Member State, of a task to be carried out partly in the territory of another Member State — Whether or not application of the judicial cooperation procedure laid down in Article 17 of the regulation is mandatory’

I – Introduction

The reference for a preliminary ruling from the Hof van Cassatie (Court of Cassation, Belgium) requires an interpretation of Articles 1 and 17 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. ( 2 )

It is a question of whether an investigative measure ordered in this matter by a court of a Member State ( 3 ) which is to be carried out partly in the territory of that Member State and partly in the territory of another Member State must, for the direct performance of the latter part of the task entrusted to a national expert, be implemented in accordance with the process of cooperation between courts laid down in Article 17 of Regulation No 1206/2001.

This question is raised in proceedings brought before a Belgian court by Belgian, German and Netherlands companies following an accident, which took place near Amsterdam involving a train bound from Belgium to the Netherlands. That court, ruling in interlocutory proceedings, designated, in accordance with national rules of procedure, a Belgian expert whose task was to investigate not only in Belgium but also in the Netherlands, an aspect which was challenged by one of the Netherlands companies concerned.

The Court of Justice must therefore rule on the substantive scope of Regulation No 1206/2001, and on whether it is mandatory to apply it, in particular where a court intends to take evidence in another Member State directly and not through a requested court in that country.

However, the question referred for a preliminary ruling also refers to the principle of the recognition judgments given in the other Member States, set out in Article 33(1) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, ( 4 ) a principle in the light of which the Court may find it necessary to interpret Articles 1 and 17 of Regulation No 1206/2001.

II – Legal framework

A – Regulation No 1206/2001

The preamble to Regulation No 1206/2001 states:

‘(2)

For the purpose of the proper functioning of the internal market, cooperation between courts in the taking of evidence should be improved, and in particular simplified and accelerated.

…

(7)

As it is often essential for a decision in a civil or commercial matter pending before a court in a Member State to take evidence in another Member State ... It is therefore necessary to continue the improvement of cooperation between courts of Member States in the field of taking of evidence.

(8)

The efficiency of judicial procedures in civil or commercial matters requires that the transmission and execution of requests for the performance of taking of evidence is to be made directly and by the most rapid means possible between Member States’ courts.

…

(15)

In order to facilitate the taking of evidence it should be possible for a court in a Member State, in accordance with the law of its Member State, to take evidence directly in another Member State, if accepted by the latter, and under the conditions determined by the central body or competent authority of the requested Member State. …

…

(17)

This Regulation should prevail over the provisions applying to its field of application, contained in international conventions concluded by the Member States. Member States should be free to adopt agreements or arrangements to further facilitate cooperation in the taking of evidence.’

Article 1(1) and (2) of Regulation No 1206/2001, entitled ‘Scope’, provides:

‘1. This Regulation shall apply in civil or commercial matters where the court of a Member State, in accordance with the provisions of the law of that State, requests:

(a)

the competent court of another Member State to take evidence, or

(b)

to take evidence directly in another Member State.

2. A request shall not be made to obtain evidence which is not intended for use in judicial proceedings, commenced or contemplated.’

Articles 10 to 16, which are contained in section 3 of the regulation, establish the procedures for the taking of evidence by a requested court of another Member State (so-called ‘indirect’ method of cooperation).

Article 10(2) of Regulation No 1206/2001 states that ‘[t]he requested court is to execute the request in accordance with the law of its Member State’.

10.

Article 17 of the Regulation, which governs direct taking of evidence by the requesting court (so-called ‘direct’ method of cooperation), provides:

‘1. Where a court requests to take evidence directly in another Member State, it shall submit a request to the central body or the competent authority … in that State …

2. Direct taking of evidence may only take place if it can be performed on a voluntary basis without the need for coercive measures.

Where the direct taking of evidence implies that a person shall be heard, the requesting court shall inform that person that the performance shall take place on a voluntary basis.

3. The taking of evidence shall be performed by a member of the judicial personnel or by any other person such as an expert, who will be designated, in accordance with the law of the Member State of the requesting court.

…

5. The central body or the competent authority may refuse direct taking of evidence only if:

(a)

the request does not fall within the scope of this Regulation as set out in Article 1,

(b)

the request does not contain all of the necessary information pursuant to Article 4, or

(c)

the direct taking of evidence requested is contrary to fundamental principles of law in its Member State.

6. Without prejudice to the conditions laid down in accordance with paragraph 4, the requesting court shall execute the request in accordance with the law of its Member State.’

B – Regulation No 44/2001

11.

Article 31 of Regulation No 44/2001 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’.

12.

Article 32 of the regulation, which is at the beginning of Chapter III, entitled ‘Recognition and enforcement’, states that ‘[f]or the purposes of this Regulation, “judgment” means any judgment given by a court or tribunal of a Contracting State, whatever the judgment may be called, including a decree, order, decision or writ of execution, as well as the determination of costs or expenses by an officer of the court’.

13.

Under Article 33(1) of Regulation No 44/2001, ‘[a] judgment given in a Member State shall be recognised in the other Member States without any special procedure being required’.

III – The main proceedings, the question referred for a preliminary ruling and the procedure before the Court of Justice

14.

On 22 November 2008, a freight train bound from Belgium to Beverwijk (Netherlands) was derailed near Amsterdam.

15.

Following that accident, legal proceedings were instituted before the Belgian and Netherlands courts.

16.

The main proceedings, in which the Belgian courts are hearing an application for interim relief, have been brought by ProRail NV (‘ProRail’) against four other companies connected with the aforementioned accident, namely Xpedys NV, (‘Xpedys’), FAG Kugelfischer GmbH (‘FAG’), DB Schenker Rail Nederland NV (‘DB Schenker’) and Nationale Maatschappij der Belgische Spoorwegen NV (Société Nationale des Chemins de fer Belges, the Belgian National Railway Company, ‘SNCB’).

17.

ProRail is a company having its registered office in Utrecht (Netherlands) which controls the railways in the Netherlands and which, for that purpose, concludes access agreements with railway companies, including DB Schenker.

18.

DB Schenker, which also has its registered office in Utrecht, is a private rail carrier. Its rolling stock consists of wagons originally leased from the SNCB, a public limited company which has its registered office in Brussels.

19.

According to DB Schenker and the SNCB, Xpedys, which has its registered office in Anderlecht (Belgium), took over as the lessor of the wagons held by DB Schenker on 1 May 2008.

20.

FAG, which has its registered office in Schweinfurt (Germany), is a manufacturer of wagon components.

21.

On 11 February 2009, the carrier, DB Schenker, summoned Xpedys and the SNCB, in their capacity as the lessors of some of the wagons involved in the aforementioned accident, to appear before the presiding judge of the Rechtbank van Koophandel te Brussel (Commercial Court, Brussels) in interlocutory proceedings. The action sought the designation of a judicial expert. ProRail and FAG intervened in the proceedings, during which ProRail requested the Court to declare the action for the designation of an expert unfounded or, if an expert were to be appointed, to limit his task to determining the damage to the wagons, not to order an investigation of the whole of the Dutch rail network, and to order that he carry out his task in accordance with the provisions of Regulation No 1206/2001.

22.

On 26 March 2009, ProRail instituted substantive proceedings against DB Schenker and Xpedys before a Dutch court, namely the Rechtbank, Utrecht (District Court, Utrecht), seeking a declaration that that carrier and that owner and lessor of the wagons involved in the accident were liable for the damage suffered by its rail network and seeking compensation from them in that regard.

23.

By order of 5 May 2009, the presiding judge of the Rechtbank van Koophandel te Brussel declared DB Schenker’s action well-founded and designated the expert, defining the scope of his task, most of which was to be carried out in the Netherlands. In the course of this, after having invited the parties to attend his activities, the expert was to proceed to the scene of the accident in the Netherlands, and to all other places where he might be able to gather useful information. Moreover, he was required to determine the manufacturer and the condition of certain technical parts of the wagons. He was also asked to advise on the damage suffered and on the extent of the damage. Finally, the expert was to investigate the rail network and the railway infrastructure controlled by ProRail and give his advice as to whether and to what extent that infrastructure contributed to the causes of the accident.

24.

ProRail appealed against that order, before the hof van beroep te Brussel (Brussels Court of Appeal) requesting that the Court declare the designation of an expert unfounded or, in the alternative, limit the task of the Belgian expert to determining the damage in so far as that task could be carried out in Belgium, and, at the very least, order that the expert carry out his activities in the Netherlands only in accordance with the procedure laid down in Regulation No 1206/2001.

25.

On 20 January 2010, the hof van beroep te Brussel dismissed that appeal, on the ground that Regulation No 1206/2001 was not applicable since, on the one hand, neither of the situations provided for in Article 1 thereof was present in this case and, on the other, ProRail’s assertion that an expert cannot be charged with an investigation in the Netherlands other than through the application of that regulation was unfounded.

26.

ProRail appealed in cassation against that decision before the hof van beroep te Brussel, alleging infringement of provisions of Union law, and in particular of Articles 1 and 17 of Regulation No 1206/2001, and also of Article 31 of Regulation No 44/2001.

27.

The national court points out that it is apparent from Articles 1 and 17 of Regulation No 1206/2001 that, where a court of a Member State wishes to take evidence – such as an investigation carried out by an expert – directly in another Member State, the prior authorisation of the latter country must be requested. It states that the grounds of appeal presented by ProRail are also based on an a contrario interpretation of Article 31 of Regulation No 44/2001, from which it is clear that such an inquiry does not have extraterritorial effect without the authorisation of the country in which it is to be carried out. Finally, the national court raises the question of the impact, within the context of the present case, of Article 33(1) of Regulation No 44/2001, according to which a judgment given in a Member State shall be recognised in the other Member States without any special procedure being required.

28.

Against that background, by decision lodged on 30 June 2011, the Hof van Cassatie Verwaltungsgerichtshof decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

‘Must Articles 1 and 17 of [Regulation No 1206/2001], in the light, inter alia, of European legislation concerning the recognition and enforcement of judgments in civil or commercial matters, and of the principle expressed in Article 33(1) of [Regulation No 44/2001] that a judgment given in a Member State is to be recognised in the other Member States without any special procedure being required, be interpreted as meaning that the court which orders an investigation by a judicial expert whose task is to be carried out partly in the territory of the Member State to which the court belongs, but partly also in another Member State, must, for the direct performance of the latter part of the task, make use only and therefore exclusively of the method created by Regulation No 1206/2001 as referred to in Article 17 thereof, or as meaning that the judicial expert assigned by that country may also be charged with an investigation which is to be partly carried out in another Member State of the European Union, outside the provisions of Regulation No 1206/2001?’

29.

Written observations have been presented to the Court by ProRail, Xpedys, DB Schenker and the SNCB jointly (‘Xpedys and Others’), by the Belgian, Czech, German and Portuguese Governments, by the Swiss Confederation and by the European Commission. No hearing has been held.

IV – Analysis

A – Admissibility of the reference for a preliminary ruling

30.

Xpedys and Others challenge the admissibility of the reference for a preliminary ruling, arguing that it is purely hypothetical in nature and irrelevant for the purpose of the decision in the main proceedings, since Regulation No 1206/2001 is not applicable in the present case.

31.

In support of their challenge, Xpedys and Others raise four pleas. The first of them is based on the fact that the initiative to obtain a cross-border expert’s report was taken by one of the parties in the proceedings, and not by the court, although the wording of Articles 1 and 17 of Regulation No 1206/2001 requires that initiative to be taken by a ‘court’ of the requesting Member State. The second alleges that the court hearing the application for interim measures was asked only to designate an expert, although those articles and the seventh recital in the preamble to that regulation require that the taking of evidence is necessary to enable the court to pronounce judgment on the merits. The third is based on the idea that there is no need to apply that regulation where, as in the present case, the exercise of the State on the territory of another Member State is not in issue and it is therefore unnecessary to have the latter’s permission to carry out the expert’s task. The fourth is based on the finding that the application of Regulation No 1206/2001 in the main proceedings would have prolonged the duration of the proceedings, which would be diametrically opposed to the objectives stated in the second recital of that regulation, namely, to simplify and accelerate the taking of evidence.

32.

I consider that these last two pleas lie outside the problem of the possible inadmissibility of the reference for a preliminary ruling and concern rather the substance of this case.

33.

As regards the first two allegations made by Xpedys and Others, I would point out that it is settled case-law ( 5 ) that, in the context of the preliminary ruling procedure, the national court is best placed, having regard to the specific features of the case, to assess both the need for a preliminary ruling to enable it to give judgment and the relevance of the question it intends to ask. Since this relates to the interpretation of European Union law, the Court is, theoretically, required to give a ruling, unless it is quite obvious that the interpretation of European Union law that is sought bears no relation to the actual facts of the main action or its purpose, or where the problem is purely hypothetical.

34.

However, in my view, that is not the situation in the present case. The reference for a preliminary ruling adequately states in what respect the interpretation of Articles 1