CELEX: C1999/020/02
Language: en
Date: 1999-01-23 00:00:00
Title: JUDGMENT OF THE COURT of 17 November 1998 in Case C-391/95 (reference for a preliminary ruling from the Hoge Raad der Nederlanden): Van Uden Maritime BV, trading as Van Uden Africa Line, v. Kommanditgesellschaft in Firma Deco-Line and Another (Brussels Convention - Arbitration clause - Interim payment - Meaning of 'provisional measures')

C 20/2                EN                  Official Journal of the European Communities                                  23.1.1999
     intra-Community trade with a view to the completion             Wathelet, Judges; P. LeÂger, Advocate-General; D.
     of the internal market;                                         Louterman-Hubeau, Principal Administrator, for the
                                                                     Registrar, has given a judgment on 17 November 1998, in
                                                                     which it has ruled:
2. Orders the Federal Republic of Germany to pay the
     costs.
                                                                     1. On a proper construction of Article 5, point 1, of
                                                                         the Convention of 27 September 1968 on Jurisdiction
(1) OJ C 158, 1.6.1996.                                                  and the Enforcement of Judgments in Civil and
                                                                         Commercial Matters, as amended by the Convention
                                                                         of 9 October 1978 on the accession of the Kingdom of
                                                                         Denmark, Ireland and the United Kingdom of Great
                                                                         Britain and Northern Ireland, and by the Convention
                                                                         of 25 October 1982 on the accession of the Hellenic
                                                                         Republic, the court which has jurisdiction by virtue
                                                                         of that provision also has jurisdiction to order
                                                                         provisional or protective measures, without that
               JUDGMENT OF THE COURT                                     jurisdiction being subject to any further conditions.
                    of 17 November 1998
in Case C-391/95 (reference for a preliminary ruling from            2. Where the parties have validly excluded the
the Hoge Raad der Nederlanden): Van Uden Maritime BV,                    jurisdiction of the courts in a dispute arising under a
trading as Van Uden Africa Line, v. Kommanditgesellschaft                contract and have referred that dispute to arbitration,
              in Firma Deco-Line and Another (1)                         no provisional or protective measures may be ordered
                                                                         on the basis of Article 5, point 1, of the Convention of
(Brussels Convention Ð Arbitration clause Ð Interim
                                                                         27 September 1968.
       payment Ð Meaning of provisional measures')
                        (1999/C 20/02)
                                                                     3. Where the subject-matter of an application for
                                                                         provisional measures relates to a question falling
                                                                         within the scope ratione materiae of the Convention of
                (Language of the case: Dutch)                            27 September 1968, that Convention is applicable and
                                                                         Article 24 thereof may confer jurisdiction on the court
                                                                         hearing that application even where proceedings have
                                                                         already been, or may be, commenced on the substance
                                                                         of the case and even where those proceedings are to be
  (Provisional translation; the definitive translation will be           conducted before arbitrators.
          published in the European Court Reports)
                                                                     4. On a proper construction, the granting of provisional
In Case C-391/95: reference to the Court under the                       or protective measures on the basis of Article 24 of the
Protocol of 3 June 1971 on the interpretation by the                     Convention of 27 September 1968 is conditional on,
Court of Justice of the Convention of 27 September 1968                  inter alia, the existence of a real connecting link
on Jurisdiction and the Enforcement of Judgments in Civil                between the subject-matter of the measures sought and
and Commercial Matters from the Hoge Raad der                            the territorial jurisdiction of the Contracting State of
Nederlanden (Supreme Court of the Netherlands) for a                     the court before which those measures are sought.
preliminary ruling in the proceedings pending before that
court between Van Uden Maritime BV, trading as Van
Uden Africa Line, and Kommanditgesellschaft in Firma                 5. Interim payment of a contractual consideration does
Deco-Line and Another Ð on the interpretation of                         not constitute a provisional measure within the
Article 1, second paragraph, point 4, Article 3, Article 5,              meaning of Article 24 of the Convention of
point 1, and Article 24 of the Convention of 27 September                27 September 1968 unless, first, repayment to the
1968, cited above (OJ L 304, 30.10.1978, p. 17), as                      defendant of the sum awarded is guaranteed if the
amended by the Convention of 9 October 1978 on the                       plaintiff is unsuccessful as regards the substance of his
accession of the Kingdom of Denmark, Ireland and the                     claim and, second, the measure sought relates only to
United Kingdom of Great Britain and Northern Ireland                     specific assets of the defendant located or to be
(OJ L 304, 30.10.1978, p. 1, and Ð amended text Ð                        located within the confines of the territorial
p. 77), and by the Convention of 25 October 1982 on the                  jurisdiction of the court to which application is made.
accession of the Hellenic Republic (OJ L 388, 31.12.1982,
p. 1) Ð the Court, composed of: G. C. Rodríguez Iglesias,
President, P. J. G. Kapteyn, J.-P. Puissochet, G. Hirsch, P.         (1) OJ C 46, 17.2.1996.
Jann (Presidents of Chambers), G. F. Mancini, J. C.
Moitinho de Almeida, C. Gulmann, J. L. Murray, D. A. O.
Edward, H. Ragnemalm (Rapporteur), L. Sevón and M.