CELEX: 62011CJ0332
Regulation (EC) No 1206/2001
Cooperation in the taking of evidence in civil and commercial matters
Direct taking of evidence
Designation of an expert
Task carried out partly in the Member State of the referring court and partly in another Member State

This request for a preliminary ruling concerns the interpretation 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 (
OJ 2001 L 174, p. 1
).
The request has been made in proceedings between ProRail BV (‘ProRail’) and Xpedys NV (‘Xpedys’), FAG Kugelfischer GmbH (‘FAG’), DB Schenker Rail Nederland NV (‘DB Schenker’) and Nationale Maatschappij der Belgische Spoorwegen NV (‘SNCB’) following an accident involving a train bound from Belgium to the Netherlands.
Legal context
Regulation (EC) No 1206/2001
According to recital 2 in the preamble to Regulation No 1206/2001, ‘[f]or 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.’
Recitals 6 and 7 in the preamble to that regulation state:
‘(6)
To date, there is no binding instrument between all the Member States concerning the taking of evidence. The Hague Convention of 18 March 1970 on the taking of evidence abroad in civil or commercial matters applies between only 11 Member States of the European Union.
(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, the Community’s activity cannot be limited to the field of transmission of judicial and extrajudicial documents […]. It is therefore necessary to continue the improvement of cooperation between courts of Member States in the field of taking of evidence.’
Recital 15 in the preamble to Regulation No 1206/2001 is worded as follows:
‘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.’
Article 1 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.
3.   In this Regulation, the term “Member State” shall mean Member States with the exception of Denmark.’
Under Article 3 of Regulation No 1206/2001, entitled ‘Central body’:
‘1.   Each Member State shall designate a central body responsible for:
(a)
supplying information to the courts;
(b)
seeking solutions to any difficulties which may arise in respect of a request;
(c)
forwarding, in exceptional cases, at the request of a requesting court, a request to the competent court.
2.   A federal State, a State in which several legal systems apply or a State with autonomous territorial entities shall be free to designate more than one central body.
3   Each Member State shall also designate the central body referred to in paragraph 1 or one or several competent authority(ies) to be responsible for taking decisions on requests pursuant to Article 17.’
In Chapter II of that regulation, on transmission and execution of requests is Section 3, entitled ‘Taking evidence by the requested court’, which contains Articles 10 to 16 of the regulation.
Article 10 of Regulation No 1206/2001, entitled ‘General provisions on the execution of the request’, provides:
‘1.   The requested court shall execute the request without delay and, at the latest, within 90 days of receipt of the request.
2.   The requested court shall execute the request in accordance with the law of its Member State.
…’
Article 17 of the regulation, which governs direct taking of evidence by the requesting court, 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 referred to in Article 3(3) in that State, using form I in the Annex.
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.
4.   Within 30 days of receiving the request, the central body or the competent authority of the requested Member State shall inform the requesting court if the request is accepted and, if necessary, under what conditions according to the law of its Member State such performance is to be carried out, using form J.
In particular, the central body or the competent authority may assign a court of its Member State to take part in the performance of the taking of evidence in order to ensure the proper application of this Article and the conditions that have been set out.
The central body or the competent authority shall encourage the use of communications technology, such as videoconferences and teleconferences.
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; or
(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.’
Article 21(2) of Regulation No 1206/2001, which governs the relationship with existing or future agreements or arrangements between Member States, provides:
‘This Regulation shall not preclude Member States from maintaining or concluding agreements or arrangements between two or more of them to further facilitate the taking of evidence, provided that they are compatible with this Regulation.’
Regulation (EC) No 44/2001
Article 31 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 (
OJ 2001 L 12, p. 1
), provides:
‘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 Chapter III of Regulation No 44/2001, entitled ‘Recognition and Enforcement’, Article 32 provides:
‘For the purposes of this Regulation, “judgment” means any judgment given by a court or tribunal of a Member 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.’
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.’
The dispute in the main proceedings and the question referred for a preliminary ruling
On 22 November 2008, a freight train bound from Belgium to the Netherlands was derailed near Amsterdam (Netherlands).
Following that accident, legal proceedings were instituted before the Belgian and Netherlands courts. The proceedings in the Dutch courts, before which ProRail brought an action for damages for the harm suffered by the Netherlands railway network is not the subject-matter of the present proceedings.
The dispute in the main proceedings, in which the Belgian courts are hearing an application for interim relief, have been brought by ProRail against four other companies connected with the aforementioned accident, namely Xpedys, FAG, DB Schenker and SNCB.
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, in particular with DB Schenker.
DB Schenker, which also has its registered office in Utrecht, is a private rail carrier, whose rolling stock consists of wagons originally leased in 2001 from the SNCB, a company which has its registered office in Brussels (Belgium).
According to DB Schenker and the SNCB, Xpedys, which also has its registered office in Brussels, took over as the lessor of the wagons on 1 May 2008.
FAG, which has its registered office in Schweinfurt (Germany), is a manufacturer of wagon components, such as axles, spindle bearings, axle-boxes and bearing housings for shafts.
After the accident, on 11 February 2009, 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 proceedings for interim measures. 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.
By order of 5 May 2009, the presiding judge of the Rechtbank van koophandel te Brussel declared DB Schenker’s action well-founded. He 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 investigation, 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 in order to determine the causes of the accident, the damage suffered by the wagons and the extent of the damage. Furthermore, he was required to determine the manufacturer and the condition of certain technical parts of the wagons and the method of loading the wagons and the effective load per axle. Finally, the expert was to investigate the rail network and the railway infrastructure controlled by ProRail and to give his advice as to whether and to what extent that infrastructure contributed to the causes of the accident.
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, that no expert’s report on the Netherlands network and rail infrastructure or any account between the parties be authorised, or if his appointment were maintained, order that the expert carry out his activities in the Netherlands only in accordance with the procedure laid down in Regulation No 1206/2001.
Since the Hof van beroep te Brussel dismissed the appeal as unfounded, ProRail appealed in cassation before the referring court, relying on infringement of Articles 1 and 17 of Regulation No 1206/2001 and Article 31 of Regulation No 44/2001.
The referring court asks whether, where a court in one Member State wishes to take evidence directly in another Member State such as an investigation by an expert, a request for prior authorisation under Articles 1 and 17 of Regulation No 1206/2001 must be made to the authorities of the latter State. It also asks about the relevance, in 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 is to be recognised in the other Member States without any special procedure being required.
In those circumstances the Hof van Cassatie 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?’
Consideration of the question referred
Admissibility
Xpedys, DB Schenker and the SNCB submit that the reference for a preliminary ruling is inadmissible on the ground 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.
They submit, first of all, that the initiative to obtain a cross-border expert’s report was taken by one of the parties to the proceedings and not by the court as required by Articles 1 and 17 of Regulation No 1206/2001. Next, Article 17 of Regulation No 1206/2001, read in the light of recital 7 in the preamble thereto, applies only where the national court is hearing the substance of the case, which is not the situation in the case in the main proceedings. They further submit that the cross-border investigation cannot be regarded as the exercise of its powers by one Member State in another Member State. Finally, the application of Regulation No 1206/2001 in the main proceedings would have prolonged the proceedings, which is contrary to the objectives of that regulation, namely to simplify and accelerate the taking of evidence.
In that regard, it must be recalled that, in accordance with settled case-law, in proceedings under Article 267 TFEU, which are based on a clear separation of functions between the national courts and the Court of Justice, the national court alone has jurisdiction to find and assess the facts in the case before it and to interpret and apply national law. Similarly, it is solely for the national court, before which the dispute has been brought and which must assume responsibility for the judicial decision to be made, to determine, in the light of the particular circumstances of the case, both the need for and the relevance of the questions that it submits to the Court. Consequently, where the questions submitted concern the interpretation of European Union law, the Court is in principle bound to give a ruling (Case
C-145/03
Keller
[2005] ECR I-2529
, paragraph 33, Case
C-11/07
Eckelkamp and Others
[2008] ECR I-6845
, paragraphs 27 and 32, and Case C-553/11
Rintisch
[2012] ECR, paragraph 15).
Thus, the Court may refuse to rule on a question referred for a preliminary ruling by a national court only where 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, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, inter alia, Case C-618/10
Banco Español de Crédito
[2012] ECR, paragraph 77, and
Rintisch
, paragraph 16).
It must be held that that is not the situation in the present proceedings.
It is clear from the order for reference that the interpretation of Articles 1 and 17 of Regulation No 1206/2001 is necessary for the resolution of the dispute in the main proceedings, since the appeal in cassation before the Hof van Cassatie was based on the infringement of those articles. Thus, the interpretation by the Court of those articles will enable the referring court to know if they preclude the expert investigation at issue in the main proceedings from being partly carried out in another Member State without having recourse to that regulation.
As regards, more particularly, the argument that the case in the main proceedings does not fall within the scope of Regulation No 1206/2001 since the taking of evidence was not ordered by the court of its own motion but on the initiative of one of the parties, it must be stated that it is clear from Article 1(1) thereof that that regulation is applicable if the court of one Member State requests the court of another Member State to take evidence or requests to take evidence directly in another Member State, it being of little importance in that regard whether the initiative was taken by a party or by the court itself.
Next, as regards the argument that it is impossible to apply Regulation No 1206/2001 in proceedings for interim measures, it must be stated that, according to Article 1(2) of that regulation, the request for the taking of evidence must be made to obtain evidence which is intended for use in judicial proceedings, commenced or contemplated. Therefore, that regulation applies not only in substantive proceedings but also in proceedings for interim measures.
Finally, as to the assertions that an expert, like the expert in the case in the main proceedings, does not exercise public powers and that the application of Regulation No 1206/2001 in main proceedings would have prolonged their duration, it must be stated, as the Advocate General observed in point 32 of his Opinion, that those arguments concern the substance of the present case and are not capable of affecting its admissibility.
In those circumstances, the request for a preliminary ruling must be regarded as admissible.
Substance
By its question, the referring court asks essentially whether Articles 1(1)(b) and 17 of Regulation No 1206/2001, read in the light of Article 33(1) of Regulation No 44/2001, must be interpreted as meaning that the court of one Member State which wishes that the taking of evidence entrusted to an expert is carried out in another Member State is required to use the method of taking evidence laid down by those provisions of Regulation No 1206/2001 to be able to order the taking of that evidence.
As a preliminary point, it must be stated that Article 33 of Regulation No 44/2001 is not capable of affecting the answer to the question referred for a preliminary ruling since that concerns the taking of evidence in another Member State and not the recognition by one Member State of a judgment given in another Member State. Therefore, in order to answer that question it is appropriate for the Court to limit its interpretation to Articles 1(1)(b) and 17 of Regulation No 1206/2001.
It must be observed that, according to Article 1(1)(b) of Regulation No 1206/2001, the latter is applicable in civil and commercial matters where the court of a Member State, in accordance with the provisions of the law of that State, makes a request to take evidence directly in another Member State.
The conditions for such direct taking of evidence are governed by Article 17 of that regulation. According to Article 17(1) and (4), such evidence may be taken directly in the requested Member State with the prior authorisation of the central body or competent authority of that State. According to Article 17(3), the taking of evidence is to 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.
It follows that Regulation No 1206/2001 applies as a general rule only if the court of a Member State decides to take evidence according to one of the two methods provided for by that regulation, in which case it is required to follow the procedures relating to those methods (Case C-170/11
Lippens and Others
[2012] ECR, paragraph 28).
Next, it must be recalled that, according to recitals 2, 7, 8, 10 and 11 in the preamble to Regulation No 1206/2001, the aim of the regulation is to make the taking of evidence in a cross-border context simple, effective and rapid. The taking of evidence, by a court of one Member State in another Member State must not lead to the lengthening of national proceedings. That is why Regulation No 1206/2001 established a regime binding on all the Member States, with the exception of the Kingdom of Denmark, to remove obstacles which may arise in that field (see Case
C-283/09
Weryński
[2011] ECR I-601
, paragraph 62, and
Lippens and Others
, paragraph 29).
Furthermore, as the Advocate General observed, in point 62 of his Opinion, that regulation does not restrict the options to take evidence situated in other Member States, but aims to increase those options by encouraging cooperation between the courts in that area.
An interpretation of Articles 1(1)(b) and 17 of Regulation No 1206/2001 according to which the court of a Member State is obliged, for any expert investigation which must be carried out directly in another Member State, to take evidence according to the method laid down by those articles would not be consistent with those objectives. In certain circumstances, it may be simpler, more effective and quicker for the court ordering such an investigation, to take such evidence without having recourse to the regulation.
Finally, the interpretation according to which Regulation No 1206/2001 does not govern exhaustively the taking of cross-border evidence, but simply aims to facilitate it, allowing use of other instruments having the same aim, is supported by Article 21(2) of Regulation No 1206/2001 which expressly authorises agreements or arrangements between Member States to further facilitate the taking of evidence, provided that they are compatible with the regulation (
Lippens and Others
, paragraph 33).
It must be stated that, in so far as the expert designated by a court of a Member State must go to another Member State in order to carry out the investigation which has been entrusted to him, that might, in certain circumstances, affect the powers of the Member State in which it takes place, in particular where it is an investigation carried out in places connected to the exercise of such powers or in places to which access or other action is, under the law of the Member State in which the investigation is carried out, prohibited or restricted to certain persons.
In such circumstances, unless the court wishing to order cross-border expert investigation foregoes the taking of that evidence, and in the absence of an agreement or arrangement between Member States within the meaning of Article 21(2) of Regulation No 1206/2001, the method of taking evidence laid down in Articles 1(1)(b) and 17 thereof is the only means to enable the court of a Member State to carry out an expert investigation directly in another Member State.
It is clear from the foregoing that a national court wishing to order an expert investigation which must be carried out in another Member State is not necessarily required to have recourse to the method of taking evidence laid down in Articles 1(1)(b) and 17 of Regulation No 1206/2001.
Such an interpretation cannot be called into question by arguments based on the history of that regulation and, in particular, by the fact that, in that regulation, the draft of a provision expressly providing, in the case of a cross-border expert investigation, for the possibility for the court of one Member State to directly designate an expert without authorisation or previously informing the other Member State was not adopted.
That provision must be understood in the context of the original draft of Regulation No 1206/2001, which provided for only one method of taking evidence, namely taking evidence by the requested court of another Member State. Since that provision did not allow an expert investigation to be carried out by the court of another Member State, it was thus an exception to the single method of taking evidence. The fact that such a provision does not appear in regulation No 1206/2001 does not mean however that a national court ordering a cross-border expert investigation must automatically use the methods of taking evidence provided for by that regulation.
Contrary to ProRail’s assertions, neither is that interpretation called into question by the finding of the Court in paragraph 23 of Case
C-104/03
St. Paul Dairy
[2005] ECR I-3481
, that an application to hear a witness in circumstances such as those which gave rise to that case could be used as a means of sidestepping the rules in Regulation No 1206/2001 governing, on the basis of the same guarantees and with the same effects for all individuals, the transmission and handling of applications made by a court of a Member State and seeking to have an inquiry carried out in another Member State.
As the Court has already held, that finding must be understood in the light of the facts which gave rise to that judgment, in which the request for a provisional witness hearing, made by one of the parties, was addressed directly to the court of the Member State in which the witness resided, which did not have jurisdiction to hear the substance of the case. Such a request could in fact be used as a means to sidestep the rules of Regulation No 1206/2001, in that it is able to deprive the competent court, to which the request should have been addressed, of the opportunity to hear the witness in accordance with the rules laid down by that regulation (see
Lippens and Others
, paragraph 36). However, the facts of the present case are distinguishable from those in
St. Paul Dairy
in so far as the evidence to be obtained is, for the most part, situated in a Member State other than that of the court seised, so that the latter has the possibility of applying Regulation No 1206/2001.
Having regard to all of the foregoing considerations, the answer to the question referred is that Articles 1(1)(b) and 17 of Regulation No 1206/2001 must be interpreted as meaning that the court of one Member State, which wishes the task of taking of evidence entrusted to an expert to be carried out in another Member State, is not necessarily required to use the method of taking evidence laid down by those provisions to be able to order the taking of that evidence.
Costs
Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (First Chamber) hereby rules:

Articles 1(1)(b) 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 must be interpreted as meaning that the court of one Member State, which wishes the task of taking of evidence entrusted to an expert to be carried out in another Member State, is not necessarily required to use the method of taking evidence laid down by those provisions to be able to order the taking of that evidence.

[Signatures]
(
*1
)	Language of the case: Dutch.