European Business Law, the fourth volume in our series, shows how the European authorities simultaneously abolish all restrictions on access to and exercise of economic activities and support the growth of domestic markets, through the harmonization the internal legislation or the enactment of genuinely unified regulations.

European Business Law

The court which is the best able to assess the circumstances which may lead to the grant or refusal of the requested measures being that of the Member State where the assets subject to the measures sought are located , the Court of Justice sets forth two conditions to the application of Article 35. 
Firstly, there must be a real connecting link between the subject-matter of the measures sought and …

Extent of jurisdiction of judge hearing applications for interim relief

The court which is the best able to assess the circumstances which may lead to the grant or refusal of the requested measures being that of the Member State where the assets subject to the measures sought are located , the Court of Justice sets forth two conditions to the application of Article 35. 

Firstly, there must be a real connecting link between the subject-matter of the measures sought and the territorial jurisdiction of the Member State of the court seized in order to obtain the granting of provisional or protective measures . This condition is not required from the court having jurisdiction as to the substance of the case under one of the heads of jurisdiction laid down in the regulation, which may order any such provisional or protective measures as it deems necessary . 

Then, as a measure derogatory from the jurisdiction in principle in Article 4, Article 35, which may be used to circumvent, at the investigating stage, the substantive jurisdiction rules, is strictly interpreted . The summary court may impose only conditions or procedures intended to guarantee the provisional and protective character of the measures it orders , which may not preempt the decision on the substance of the case and/or make it possible to circumvent the substantive rules of jurisdiction . Thus, Article 22(4) of Regulation No 44/2001 [24(4) Reg. 1215-2012], which provides for exclusive jurisdiction in proceedings concerned with the registration or validity of patents, does not preclude the application of Article 31  [35(4) Reg. 1215-2012] in a situation which concerns an action for infringement in which the invalidity of a European patent has been raised at an interim stage as a defense to the adoption of a provisional measure concerning cross-border prohibition against infringement, insofar as the provisional decision taken by the court will not in any way prejudice the decision to be taken on the substance by the court having jurisdiction .

As a provisional measure, the court may not order interim payment measures which, by their very nature, may preempt the decision on the substance of the case. Interim payment of a contractual consideration does not constitute a provisional, or protective, measure within the meaning of Article 31, unless repayment to the defendant of the sum awarded is guaranteed if the plaintiff is unsuccessful as regards the substance of his claim and the measure sought relates only to specific assets of the defendant located or to be located within the confines of the territorial jurisdiction of the court to which application is made .

The court hearing interim applications must have detailed knowledge of the actual circumstances in which the measure is to take effect . On the other hand, the condition of urgency, generally required in summary matters, is not expressly required either by the regulation or by case law .

Case 125/79 Denilauler v Couchet [1980] ECR 1553, LawLex200900001504JBJ.

Case C-391/95 Van Uden Maritime v Kommanditgesellschaft in Firma Deco-Line and others [1998] ECR I-7091, LawLex200900000651JBJ. 

Case C-391/95 Van Uden Maritime v Kommanditgesellschaft in Firma Deco-Line and others [1998] ECR I-7091, LawLex200900000651JBJ: "[...] the court having jurisdiction as to the substance of a case under one of the heads of jurisdiction laid down in the [regulation] also has jurisdiction to order provisional or protective measures, without that jurisdiction being subject to any further conditions, such as that mentioned in the national court's third question [i.e. that the measure necessarily produces effects on the territory of the court seized]". In other words, the court having jurisdiction as to the substance may order provisional measures outside the territory, unlike the court having jurisdiction under Article 35.

Case C-391/95 Van Uden Maritime v Kommanditgesellschaft in Firma Deco-Line and others [1998] ECR I-7091, LawLex200900000651JBJ: Article 35 must be interpreted as to enable a normally well-informed defendant reasonably to predict before which courts, other than those of the Member State in which he is domiciled, he may have to defend his interest as part of court proceedings.

Case 125/79 Denilauler v Couchet [1980] ECR 1553, LawLex200900001504JBJ: the court which grants provisional on the basis of Article 35, depending on commercial practices, must be able to place a time-limit on its order or, as regards the nature of the assets or goods subject to the measures contemplated, require bank guarantees or nominate a sequestrator and generally make its authorization subject to all conditions guaranteeing the provisional or protective character of the measure ordered.

 Case C-391/95 Van Uden Maritime v Kommanditgesellschaft in Firma Deco-Line and others [1998] ECR I-7091, LawLex200900000651JBJ and Case  C-99/96 Mietz [1999] ECR I-2277, LawLex200700001833JBJ.

Case C-616/10 Solvay SA, Judgment of 12 July 2012, LawLex201200002021JBJ.

Case C-391/95 Van Uden Maritime v Kommanditgesellschaft in Firma Deco-Line and others [1998] ECR I-7091, LawLex200900000651JBJ; Case C-99/96 Mietz [1999] ECR I-2277, LawLex200700001833JBJ. 

Case 125/79 Denilauler v Couchet [1980] ECR 1553, LawLex200900001504JBJ

In Case C-99/96 Mietz [1999] ECR I-2277, LawLex200700001833JBJ, the ECJ, without however requiring the urgency condition, described the procedure in Article 35 as 'urgency procedure', and 'fast procedures intended to grant provisional or protective measures in case of urgency'.

European Business Law

352. Extent of jurisdiction of judge hearing applications for interim relief

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

352. Extent of jurisdiction of judge hearing applications for interim relief

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise