ProRail BV v Xpedys NV and Others.
Date: 2013-02-21
30. 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).
31. 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).
42. 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).
43. 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).
46. 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).
52. 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.
53. 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.