CELEX: C1996/046/11
Language: en
Date: 1996-02-17 00:00:00
Title: Reference for a preliminary ruling from the Hoge Raad der Nederlanden by judgment of that court of 8 December 1995 in the case of Van Uden Africa Line v. (1) Kommanditgesellschaft in Firma Deco-Line, Peter Determann KG and (2) Peter Determann (Case C-391/95)

17 . 2 . 96              EN                     Official Journal of the European Communities                                       No C 46/7
      decisions it wrongly accorded decisive importance to a                   arbitration clause and, if so, what the place of
      measure adopted by the Netherlands Antilles .                            arbitration is according to that clause ?
— Breach and/or misapplication of Article 190 and/or
                                                                           3 . If the answer to Question 1 is that, in order for the court
      Article 215 of the Treaty, and at least of generally
      applicable principles of Community law, in what the                      hearing the interlocutory application to have
      Court of First Instance considered and decided in                        jurisdiction, the relief sought from it must also take
      paragraph 207 of the judgment under appeal, in                           effect, or be capable of taking effect, in the Contracting
                                                                               State concerned, does that mean that the order applied
      particular in drawing from its finding that the damage in
                                                                               for must be capable of enforcement in that State, and is it
      question was in no way unforeseeable the conclusion
                                                                               then necessary for this condition to be fulfilled when the
      that the damage suffered by the applicants did not go
                                                                               interlocutory application is made, or is it sufficient that
      beyond the economic risks inherent in activity in that
      sector .
                                                                               it can be reasonably expected to be fulfilled in the
                                                                               future ?
(') OJ No C 286 , 28 . 10 . 1995 , p . 10 .
( 2 ) OJ No C 171 , 22 . 6 . 1993 , pp . 11 and 12 .                       4 . Does the possibility, provided for in Article 289 et seq.
( 3 ) Council Decision 91 /482/EEC of 25 July 1991 ( OJ 1 991 L 263 ,          of the Netherlands Code of Civil Procedure, of applying
      p. 1 ).                                                                  on grounds of pressing urgency to the President of the
                                                                               Arondissementsrechtbank              ( District  Court )    for
                                                                               immediate anticipatory relief constitute a 'provisional '
                                                                               or 'protective' measure within the meaning of Article 24
                                                                               of the Brussels Convention ?
Reference for a preliminary ruling from the Hoge Raad der                  5 . Does it make any difference to the answer to Question 4
Nederlanden by judgment of that court of 8 December 1995                       whether substantive proceedings on the main issue are,
in      the    case  of     Van     Uden      Africa   Line   v.   (1)         or may become, pending and, if so, is it material that
Kommanditgesellschaft             in  Firma       Deco-Line,     Peter         arbitration proceedings had started in the same case ?
              Determann KG and ( 2 ) Peter Determann
                           ( Case C-391/95 )
                                                                           6 . Does it make any difference to the answer to Question 4
                              ( 96/C 46/ 11 )                                  whether the interim relief sought is an order requiring
                                                                               performance of a payment obligation, as referred to in
Reference has been made to the Court of Justice of the                         Question 1 ?
European Communities by judgment of the Hoge Raad der
Nederlanden ( Supreme Court of the Netherlands ) of
                                                                           7. If Question 4 must be answered in the affirmative, and
8 December 1995 , which was received at the Court Registry
on 14 December 1995 , for a preliminary ruling in the case of                  'the courts of another Contracting State have
                                                                               jurisdiction as to the substance of the matter', must
Van Uden Maritime BV, trading as Van Uden Africa Line, v.
 ( 1 ) Kommanditgesellschaft in Firma Deco-Line, Peter                         Article 24, and in particular the reference therein to
                                                                                ' such provisional . . . measures as may be available
Determann KG and ( 2 ) Peter Determann on the following
                                                                               under the law of [a Contracting] State', be interpreted as
questions :
                                                                               meaning that the court hearing the application for
                                                                                interim measures ( automatically ) has jurisdiction if it
 1 . Where an obligation to pay a sum or sums due under a                      has jurisdiction under its national jurisdictional rules,
       contract must be performed in a Contracting State — so                  even where the rules in question are those referred to in
       that, under Article 5(1 ) of the Brussels Convention, the               the second paragraph of Article 3 of the Brussels
       creditor is entitled to sue his defaulting debtor before the             Convention, or is its jurisdiction in the latter case
       courts of that State with a view to obtaining                           conditional on the fulfilment of more specific
       performance, even though the debtor is domiciled in the                 conditions, for example that the interim relief sought
       territory of another Contracting State —, do the courts                  from that court must take effect, or be capable of taking
       of the first-mentioned State ( automatically ) have                      effect, in the Contracting State concerned ?
       jurisdiction also to hear and determine a claim brought
       by the creditor against his debtor in interim proceedings
       for an order requiring the debtor, as immediate                     8 . If the answer to Question 7 must be that, in order for the
       provisional relief, to pay a sum which, in the view of the               court hearing the application for interim relief to have
       court hearing the interlocutory application, is very                     jurisdiction, it is also required that the relief sought from
       probably due to the creditor, or do more specific                        it must take effect, or be capable of taking effect, in the
       conditions apply in relation to the jurisdiction of the                  Contracting State concerned, does that mean that the
       court hearing the interlocutory application, for example                 order applied for must be capable of enforcement in that
       the condition that the relief sought from that court must                State, and is it then necessary for this condition to be
       take effect, or be capable of taking effect, in the                      fulfilled when the application for interim relief is made,
       Contracting State concerned ?                                             or is it sufficient that it can reasonably be expected to be
                                                                                 fulfilled in the future ?
 2 . Does it make any difference to the answer to Question 1
       whether the contract between the parties contains an