Judgment — ECLI:EU:C:1998:543
Date: 1998-11-17
Language of the case: Dutch
Court formation: Full Court
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Brussels Convention of 27 September 1968;Brussels Convention of 27 September 1968 - Jurisdiction
Concepts: Provisional, including protective measures;General
Procedure: Reference for a preliminary ruling
Origin: Netherlands

summary recognition and 
enforcement of a decision given in another 
Contracting State. 
96. I therefore conclude, with regard to the 
first question, without there thus being any 
need to answer the third question, that a court 
having jurisdiction under Article 5, point 1, 
of the Convention has that jurisdiction irre­
spective of the nature of the proceedings in 
which the application was made to it. It may 
therefore, by virtue of that jurisdiction, in 
interim proceedings order the payment of a 
sum of money as immediate provisional relief, 
without its jurisdiction being made subject to 
46 — See point 13 of this Opinion. 
47 — Page 8 of the French translation of its observations; see also 
to this effect the observations of Van Uden, at point 1.4. 
48 — Point 24 of its observations. 
49 — Case 145/86 Hoffmann [1988] ECR 645, paragraph 10, 
which reproduces the wording of the Jeriard report, p. 42. 
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OPINION OF MR LÉGER — CASE C-391/95 
the condition that the order be enforceable in 
the State concerned. 
97. Two conclusions must be drawn from 
that. 
98. On the one hand, since the court hearing 
the interim application has jurisdiction, in its 
capacity as the court for the 'place of perfor­
mance of the obligation in question', in mat­
ters relating to a contract, it is not required to 
refer to the grounds of jurisdiction provided 
for by its national law. In particular, it is not 
necessary to rely on Article 126(3) of the 
Code of Civil Procedure (which is included 
in the list of rules of exorbitant jurisdictions 
in the second paragraph of Article 3 of the 
Convention and may not, therefore, be relied 
on in order to sue a defendant in the Neth­
erlands courts). 
99. On the other hand, in so far as the Court 
holds, as I propose that it should, that the 
Netherlands court has jurisdiction under 
Article 5, point 1, to hear and determine the 
application for interim relief, it is not neces­
sary to ascertain whether its jurisdiction can 
also be based on Article 24. There is, in prin­
ciple, no need to answer Questions 4 to 8. 
100. I therefore put forward only in the alter­
native the following arguments concerning 
that provision. 
C — Article 24 of the Convention 
101. During the national proceedings, the 
President of the Rechtbank, Rotterdam, held 
that he had jurisdiction to hear and determine 
the application made by Van Uden in kort 
geding proceedings, not under Article 5, point 
1, of the Brussels Convention, even though, 
as we have just seen, that possibility was open 
to him, but under Article 24. 
102. By its fourth to eighth questions, the 
court making the reference therefore seeks to 
ascertain whether Article 24 of the Conven­
tion covers an application such as that made 
in the main proceedings and, if so, under what 
conditions. 
103. The Court is thus once again faced 
(fourth question) with the issue of whether 
immediate provisional relief, applied for on 
grounds of pressing urgency and ordered in 
kort geding proceedings, may be regarded as 
a 'provisional' or 'protective' measure within 
the meaning of Article 24 of the Convention. 
That was also one of the questions referred to 
the Court by the Hoge Raad in the W. v H. 
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VAN U D E N v DECO-LINE 
case cited above. 50 On that occasion, the 
Court was not required to rule on this issue. 51 
104. The other questions submitted essen­
tially ask the Court to clarify the conditions 
of application of Article 24. They are of two 
types: two (Questions 4 and 6) are concerned 
with 'provisional' or 'protective' measures, 
the others (Questions 5, 7 and 8) with juris­
diction. 
1. The concept of provisional or protective 
measures 
105. Article 24 obviously applies only if the 
'provisional' or 'protective' measures sought 
fall within the scope ratione materiae of the 
Convention: '[Article 24] cannot ... be relied 
on to bring within the scope of the Conven­
tion provisional or protective measures 
relating to matters which are excluded there­
from'. 52 As we have seen, that is the case in 
this instance. 
106. With regard to the measures envisaged 
by that provision, which, as the Court has 
held, may serve '... to safeguard a variety of 
rights', 53 academic writers often draw atten­
tion to the difficulty of defining their content-
Indeed, 'the absence of a uniform definition 
of the concept of provisional and protective 
measures established by the Brussels Conven­
tion is liable to result in appreciably different 
systems of legal protection in the Member 
States'. 54 
107. The Court has in any event opted for a 
'Community' definition of the concept: 
'The expression "provisional, including pro­
tective, measures" within the meaning of 
Article 24 must ... be understood as referring 
to measures which, in matters within the 
scope of the Convention, are intended to pre­
serve a factual or legal situation so as to safe­
guard rights the recognition of which is sought 
elsewhere from the court having jurisdiction 
as to the substance of the matter.' 55 
108. Can measures ordered in proceedings 
on an application for interim relief under 
50 — The same question has been referred to the Court by the 
Bundesgerichtshof, which is required to rule on the recogni­
tion and enforcement of a judgment given by the Arrondisse­
mentsrechtbank, Leeuwarden, in kort geding proceedings, in 
Cise C-99/96 Mietz (published in OJ 1996 C 145). currently 
pending. 
51 — It held that the relief applied for in the main proceedings 
constituted a matter (rights in property arising out of a mat­
rimonial relationship) excluded from the scope of the Con­
vention. 
52 — W v H., paragraph 12, and de Cavei I, paragraph 9, cited 
above. 
53 — Case C-261/90 Reichert and Others [1992] ECR I-2149, 
paragraph 32, hereinafter the 'Reichert II judgment', and the 
De Cavel I judgment, paragraph 8, cited above. 
54 — Tarzia, G.: 'Les mesures provisoires dans les pays de la 
C. E. E.', Annales de droit de Louvain, 1996, N o 1, p. 163, 
point 1. 
55 — Reichert II judgment, cited above, at paragraphs 34 and 35, 
in which, on the basis of that definition, the Court held that 
the action paulienne in French law did not come within the 
scope of Article 24. 
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OPINION OF MR LÉGER — CASE C-391/95 
Netherlands law, as provided for by Article 
289 et seq. of the Netherlands Code of Civil 
Procedure, be regarded as satisfying such a 
definition? 
109. That question is justified, according to 
one writer, because '... the procedure of 
applying for interim relief (kort geding) has 
undergone very considerable changes in Neth­
erlands practice. From an expeditious and 
provisional procedure, it has to a large extent 
become a procedure for urgent cases with 
definitive character ... Indeed, social or eco­
nomic issues of major importance which 
demand an urgent solution, such as, for 
example, an injunction to end a strike, are 
often the subject-matter of an application for 
interim relief, the substance of which will not 
be further discussed by the ordinary courts. 
In fact, in the Netherlands, courts hearing 
applications for interim relief make very little 
use of the power available to them to enjoin 
the parties to bring an action on the substance 
of the matter within a certain time, which 
deprives the procedure of most of its provi­
sional character'. 56 
110. That is because, according the classifica­
tion proposed by another writer, 57 the Neth­
erlands kort geding, like the French référé-
provision, for example, is one of those 
'measures totally or partly anticipatory of the 
decision on the substance' which differ from 
the more conventional provisional measures 
which exist in other legal systems, such as 
'protective measures in the narrow sense of 
the term [which] are designed to ensure per­
formance or bring about an advance on per­
formance', or 'temporary and protective mea­
sures for the provisional resolution of the 
factual situation in relation to a disputed legal 
relationship'. 
111. According to certain writers, however, 
'it may ... be considered that the letter of 
Article 24 imposes a rigorous distinction 
between provisional and substantive mea­
sures, so that any measure anticipating the 
decision on the substance would cease to be 
provisional within the meaning of the Brus­
sels Convention'. 58 That was also the opinion 
of the Commission in the W. v H. case cited 
above. 
112. However, I do not think that a measure 
such as that ordered in the interim proceed­
ings in this case on the basis of Article 289 et 
seq. of the Code of Civil Procedure, requiring 
the debtor to pay a sum as immediate provi­
sional relief, 59 can be regarded as 'intended to 
preserve a factual or legal situation so as to 
safeguard rights the recognition of which is 
sought elsewhere from the court having juris­
diction as to the substance of the matter'. 
56 — Droz, G. A. L., commentary on the judgment in the W v 
H. case, cited above, in: Revue critique de droit international 
privé, 1984, p. 354, point 4. 
57 — Târzia, G., cited above, point 2. 
58 — Bischoff, J.-M. and Huet, A.: 'Chronique de jurisprudence 
de la Cour de Justice des Communautés européennes', 
Journal du droit international, 1982, N o 1, pp. 942, 947. 
59 — Because of the diversity of measures which can be granted 
in kort geding proceedings, I shall not deal with such pro­
ceedings in the light of Article 24 of the Convention in gen­
eral terms, as requested by the Hoge Raad in its fourth ques­
tion. I shall confine my observations to the proceedings as 
instituted in this particular case. Questions 4 and 6 will 
therefore be considered together. 
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113. On the one hand, the pecuniary char­
acter of such a measure is not such as to pre­
clude it from being characterised as 'provi­
sional' or 'protective'. 
114. That was, in any event, what the Court 
held in its judgment in Case 125/79 Denilauler 
[1980] ECR 1553. On that occasion, reference 
was made to the Court by a German appeal 
court asked to register for enforcement an 
order made by a French court, declared pro­
visionally enforceable, authorising a creditor 
to freeze the account of a debtor at a bank in 
Germany. Although the Court did not 
expressly rule on the classification of such a 
measure in the light of Article 24, it refused 
to allow the enforcement order in that case 
only because the proceedings in the French 
court had not involved the hearing of both 
parties, and thus had not respected the rights 
of the defence. In so doing, it seems to me 
that the Court implicitly acknowledged that 
such measures, while capable of being classi­
fied as 'provisional' or 'protective' within the 
meaning of Article 24, could not be covered 
by the provisions of Title III unless they had 
been ordered pursuant to adversary proceed­
ings. 
115. Another example can be found in a recent 
order 60 which, although not made in the 
context of the Brussels Convention but on 
appeal against an order of the President of the 
Court of First Instance made in interlocutory 
proceedings, seems to me to identify some 
principles which may guide the Court in 
giving the interpretation requested from it. 
While: 
'[t]he wording of the order under appeal ... 
appears to indicate that a measure granting 
(by way of advance) a part of the compensa­
tion claimed in the main proceedings and 
seeking to protect the applicant's interests 
until judgment is delivered in those proceed­
ings is inconsistent with the conditions for or 
nature of an interim application, irrespective 
of the factual and legal circumstances of the 
individual case', 61 
it was held that: 
'[i]t is not possible ... to rule out in advance, 
in a general and abstract manner, that pay­
ment, by way of an advance, even of an 
amount corresponding to that sought in the 
main application, may be necessary in order 
to ensure the practical effect of the judgment 
in the main action and may, in certain cases, 
appear justified with regard to the interests 
involved'. 62 
116. Moreover, the relief sought in the kort 
geding proceedings is certainly intended to 
60 — Order in Case C-393/96 P(R) Antonissen v Council and 
Commission [1997] ECR I-441. 
61 — Ibid., at paragraph 35. 
62 — Ibid., at paragraph 37. 
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OPINION OF MR LÉGER — CASE C-391/95 
achieve the 'recognition of rights sought else­
where from the court having jurisdiction as 
to the substance of the matter', in the sense 
that it does not have definitive character. 
117. Article 292 of the Code of Civil Proce­
dure lays down that such relief must be 
without prejudice to the main action. It does 
not, therefore, constitute res judicata. Conse­
quently, the proceedings provided for in 
Article 289 et seq. are intended by that legis­
lation to be provisional in character. 
118. The fact that the current trend of prac­
tice in the Netherlands courts frequently 
seems to mean that no proceedings on the 
substance of the matter are either pending 
when the application for interim relief is made 
or instituted subsequently does not in any 
way detract from the foregoing consideration. 
119. Indeed, if, despite the merely provisional 
status which it is intended to have, the mea­
sure acquires definitive character, that is only 
because of the attitude of the parties. As the 
Commission points out: 'If the defendant 
submits to the judgment, the fact that what is 
intended as a provisional measure acquires 
definitive character must be attributed to that 
submission. Similarly, where the defendant 
does not apply for the annulment of a mea­
sure ordered in interlocutory proceedings, 
although there are no proceedings pending on 
the substance of the matter, that decision is a 
matter for the defendant alone and does not 
alter the provisional character of the measure 
in any way.' 63 
120. I therefore conclude, in answer to the 
fourth and sixth questions, that a provision­
ally enforceable measure requiring a debtor 
to pay a sum of money, ordered pursuant to 
Article 289 et seq. of the Code of Civil Pro­
cedure, is a 'provisional' or 'protective' mea­
sure within the meaning of Article 24 of the 
Brussels Convention. 
2. Courts having jurisdiction 
121. By allowing application to be made to 
the courts of a Contracting State, 'even if, 
under this Convention, the courts of another 
Contracting State have jurisdiction as to the 
substance of the matter', Article 24 is intended 
to apply irrespective of which jurisdictional 
rule is laid down by the Convention for dis­
posing of the substantive issues. Consequendy, 
each court must determine its jurisdiction 
according to the lex fori. 
122. Within the powers thus conferred on 
the national court by Article 24 of the Con­
vention, the Court has held that the national 
court must '... make its authorisation subject 
to all conditions guaranteeing the provisional 
63 — Point 37 of its observations. 
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VAN UDEN v DECO-LINE 
or protective character of the measure 
ordered'. 64 
In particular, the Court emphasised that: '... 
the granting of this type of measure requires 
particular care on the part of the court and 
detailed knowledge of the actual circum­
stances in which the measure is to take effect. 
Depending on each case and commercial prac­
tices in particular, the court must be able to 
place a time-limit on its order or, as regards 
the nature of the assets or goods subject to 
the measure contemplated, require bank guar­
antees or nominate a sequestrator ...'. 
123. Do more specific conditions apply to 
the exercise of jurisdiction? 
(a) The requirement that proceedings should 
also be pending before another court having 
jurisdiction as to the substance of the matter 
124. By its fifth question, the Hoge Raad 
seeks to ascertain whether the jurisdiction 
conferred pursuant to Article 24 necessarily 
presupposes that substantive proceedings on 
the main issue are, or may become, pending 
before another court. 
125. In answer to this question, I concur with 
the opinion expressed by a number of writers: 
'... Article 24 applies regardless of whether 
substantive proceedings on the main issue are 
or are not pending before another court... Of 
course, Article 24 does not require a substan­
tive action on the main issue to have already 
been brought before one court in order for a 
provisional or protective measure to be sought 
from another court ..." 65 
126. As the Commission points out, 66 it is 
sufficient to refer to the wording of Article 
24, which provides the applicant with an 
additional ground of jurisdiction, 'even if, 
under this Convention, the courts of another 
Contracting State have jurisdiction as to the 
substance of the matter'. 67 
127. The jurisdiction conferred pursuant to 
Article 24 applies only to provisional or pro­
tective measures. The possibility of disposing 
of the substantive issues of the case therefore 
remains, as we have seen, unaffected by that 
provision. However, the court from which 
such provisional or protective measures are 
sought will not necessarily be the same as the 
court having jurisdiction pursuant to Sections 
2 to 6 of Title II of the Convention to hear 
and determine the substantive issues of the 
case. That is why Article 24 makes it clear 
that the fact that another court has jurisdic­
tion as to the substance of the matter does 
not in any way preclude the aforementioned 
court, which is '... best able to assess the 
64 — Denilauler judgment, cited above, paragraph 15. 
65 — Bischoff, J.-M. and Huet, J., cited above, p. 947. 
66 — Point 41 et seq. of its observations. 
67 — Emphasis added. 
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OPINION OF MR LÉGER — CASE C-391/95 
circumstances which may lead to the grant or 
refusal of the measures sought or to the laying 
down of procedures and conditions which 
the plaintiff must observe in order to guar­
antee the provisional and protective character 
of the measures ordered...', 68 from ordering 
the measures at issue. 
128. There is no point, in this context, in 
requiring that substantive proceedings on the 
main issue be already pending. It is sufficient 
in this regard that the possibility of disposing 
of the substantive issues exists. I have pointed 
out that Article 292 of the Code of Civil Pro­
cedure guarantees the principle that such pro­
ceedings may be brought. 
129. In answer to the fifth question, I there­
fore conclude that the jurisdiction provided 
for under Article 24 of the Convention is not 
conditional upon the prior commencement of 
substantive proceedings on the main issue. It 
is sufficient in this regard that the possibility 
of bringing such proceedings exists. 
(b) The possibility for the court to hold that 
it can hear the application under a rule of 
exorbitant jurisdiction 
130. If the court from which a provisional or 
protective measure is sought pursuant to 
Article 24 determines its jurisdiction according 
to the lex fori, it may be wondered whether 
all the international jurisdictional rules of the 
Contracting States can serve as the basis for 
the exercise of jurisdiction by their courts in 
matters relating to provisional or protective 
measures or whether, on the contrary, Article 
24 leads to the exclusion of certain jurisdic­
tions. Can a court having jurisdiction under 
Article 24, for example, be allowed to give 
judgment on the basis of a national legal rule 
of exorbitant jurisdiction of the kind referred 
to in Article 3 of the Convention? That is the 
substance of the first part of the seventh 
question. 
131. The German Government points out 
that the answer to this question is particularly 
important because, 'under the third paragraph 
of Article 28 of the Brussels Convention, the 
international jurisdiction of the court applied 
to may not be reviewed when recognising 
and ordering the enforcement of an interim 
measure, and because the rules relating to 
jurisdiction are not a matter of public policy 
within the meaning of Article 27, point 1, of 
the Brussels Convention'. 69 
132. As we know, Article 3 establishes the 
principle that a defendant may be sued in the 
courts of a Contracting State other than that 
in which he is domiciled 'only by virtue of 
the rules set out in Sections 2 to 6 [of Title II 
of the Convention]'. 
68 — Deniiauler judgment, cited above, at paragraph 16. 69 — Point II(4)(e) of its observations. 
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VAN U D E N v DECO-LINE 
133. However, Article 24 is the sole provi­
sion in Section 9 of that title. Consequently, 
the provisions of Article 3 do not appear to 
be applicable to it. 
134. To allow the exercise of an exorbitant 
jurisdiction in the context of the reference 
made by Article 24 to the lex fori does not 
appear to me to distort the meaning of the 
exclusion provided for in Article 3. 
135. On the contrary, I see an advantage in it. 
In view of the urgency which generally under­
lies the making of such applications, the person 
seeking a measure intended to preserve a fac­
tual or legal situation must be able to apply 
to his nearest court. 
136. The jurisdiction of the courts of the 
plaintiff's domicile is certainly accepted in 
such a case, contrary to the rule of principle 
established by Article 2. However, measures 
ordered under the jurisdiction conferred by 
Article 24 will necessarily have 'provisional' 
or 'protective' character. Once such measures 
have been ordered, it will then be for the 
party concerned — in some cases the defen­
dant — to commence proceedings in the court 
having jurisdiction as to the substance of the 
matter, if that has not already been done. 
(c) The requirement that the measure be 
capable of enforcement in the State of the 
court hearing the application 
137. Certain writers sometimes add a further 
condition: that the court seised should not 
assume jurisdiction to adopt the measures 
referred to in Article 24, even though its law 
may give it such jurisdiction, where its deci­
sion could be complied with only by way of 
proceedings to obtain an enforcement order; 
on that view, the court would adopt such 
measures only if its decision could be com­
plied with in the territory of its State. 70 
138. The extremely general terms in which 
Article 25 71 is couched mean that decisions 
ordering provisional or protective measures 
fall within the scope of Title III of the Con­
vention: 'Article 24 does not preclude provi­
sional or protective measures ordered in the 
State of origin pursuant to adversary proceed­
ings ... from being the subject of recognition 
and an authorisation for enforcement on the 
conditions laid down in Articles 25 to 49 of 
the Convention.' 72 
70 — See, to this effect, Béraudo, J.-P. in Juris-Classeur 'Europe', 
vol. 6, part 3030, point 39; Gaudemet-Tallon, H., cited above, 
point 271; Gothot, P. and Holleaux, D., cited above, points 
202 and 203. 
71 — Under which: 'For the purposes of this Convention, "judg­
ment" 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.' 
72 — Denilauler judgment, cited above, at paragraph 17. 
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OPINION OF MR LÉGER — CASE C-391/95 
139. A court of a Contracting State may thus 
have jurisdiction to order such a measure even 
if it can be enforced only in another Con­
tracting State. Moreover, in the De Cavel I 
and Denilauler judgments cited above, the 
Court did not dispute that a French court can 
order protective measures relating to prop­
erty situated in Germany (placing under seal 
and freezing of assets in the De Cavel I case; 
freezing of a bank account in the Denilauler 
case). And in both cases, although the French 
decisions did not come within the system of 
recognition and enforcement provided for by 
the Brussels Convention, that was for reasons 
connected with the matter at issue and the 
rights of the defence respectively. 
140. Consequently, in answer to the second 
part of the seventh question, there can be no 
requirement making a court's jurisdiction 
under Article 24 dependent on fulfilment of 
the condition that the relief granted by the 
court must be capable of enforcement in the 
territory of its State. 
141. The eighth question therefore becomes 
devoid of purpose. 
IV — Conc lus ion 
142. In the light of the foregoing I p ropose that the C o u r t give the following replies 
to the H o g e Raad der Neder landen : 
(1) T h e jur i sd ic t ion in mat te rs relating t o a contract exercised b y a cou r t u n d e r 
Art ic le 5, p o i n t 1, of the C o n v e n t i o n o n Jur isdic t ion and the Enforcement of 
J u d g m e n t s in Civil and Commerc ia l Mat te rs , s igned at Brussels o n 27 Sep­
t ember 1968, applies irrespective of the nature of the proceedings in wh ich 
applicat ion is made to tha t cour t . In particular, a cou r t of a Con t r ac t i ng State 
m a y have jur isdic t ion, u n d e r tha t provis ion , t o hear and de te rmine a claim 
b r o u g h t in in ter im proceedings for an o rde r requir ing the debtor , as immedia te 
provis ional relief, t o pay a sum to the creditor, w i t h o u t its jur isdic t ion being 
made dependen t o n t h e fulfilment of condi t ions o the r than those specified in 
Art ic le 5, p o i n t 1, such as the cond i t ion that the decision given be capable of 
enforcement in the State of the cour t hear ing the application. 
(2) T h e fact tha t the part ies have agreed o n an arbi t ra t ion clause is relevant, if at 
all, on ly u n d e r the lex fori, pu r suan t t o which it is for the cour t hear ing the 
appl icat ion to make sure tha t it has jurisdict ion. 
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143. In the alternative: 
(3) In answer to the fourth and sixth questions: 
Article 24 of the Convention must be interpreted as meaning that the concept 
of 'provisional' or 'protective' measures to which it refers covers the possibility, 
as provided for in Article 289 et seq. of the Netherlands Code of Civil Pro­
cedure, of applying on grounds of pressing urgency to the President of the 
Arrondissementsrechtbank for an order requiring the debtor, as immediate pro­
visional relief, to pay a sum of money in performance of a contractual obliga­
tion. 
(4) In answer to the fifth question: 
It is immaterial, in the context of the application of Article 24 of the Conven­
tion, whether substantive proceedings on the main issue are, or may become, 
pending, provided that the possibility of bringing such proceedings before a 
court exists in national law. 
(5) In answer to the seventh question: 
Likewise, it is immaterial whether the court bases its jurisdiction under Article 
24 of the Convention on a provision of its national law referred to in the 
second paragraph of Article 3 of the Convention. 
The court's jurisdiction under Article 24 of the Convention may not be made 
dependent on fulfilment of the condition that the measure which it adopts be 
capable of enforcement in the territory of its State. 
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