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

Regulation No 1215/2012 does not provide a definition of interim measures . According to Article 35, “[a]pplication may be made to the courts of a Member State for such provisional, including protective, measures as may be available under the law of that Member State, even if the courts of another Member State have jurisdiction as to the substance of the matter”. An application for provisional mea …

Definition

Regulation No 1215/2012 does not provide a definition of interim measures . According to Article 35, “[a]pplication may be made to the courts of a Member State for such provisional, including protective, measures as may be available under the law of that Member State, even if the courts of another Member State have jurisdiction as to the substance of the matter”. An application for provisional measures may therefore be submitted to a court which does not have jurisdiction as to the substance of the case, even where proceedings have already been, or may be, commenced on the substance of the case and even where those proceedings are to be conducted before arbitrators .

Within the meaning of the regulation, measures which fall within its scope of application and are intended to preserve a factual or legal situation so as to safeguard rights the recognition of which is sought elsewhere from the court having jurisdiction as to the substance of the matter, are provisional or protective measures . These measures fall within the scope of application of the regulation not by their own nature but by the nature of the rights which they serve to protect . Accordingly, provisional or protective measures relating to matters that are excluded , such as an application for provisional measures considered to be connected with rights in property arising out of a matrimonial relationship because of its ancillary nature , a measure, the aim of which is not to preserve a factual or legal situation, such as measures which order the hearing of a witness to allow the applicant to assess the chances or risks of proceedings , the decision pursuant to which the summary court orders interim payment of a contractual consideration which, by its very nature, is such that it may substitute for the decision on the substance , or the “action paulienne” which seeks to vary the legal situation of the assets of the debtor and that of the beneficiary by ordering the revocation as against the creditor of the disposition effected by the debtor in fraud of the creditor's rights , do not fall within the regulation.

The Court of Justice has therefore had to define the notion of interim measures.  

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

Case C-261/90 Reichert and Kockler v Dresdner Bank [1992] ECR I-2149, LawLex200900002152JBJ.

Case 143/78 De Cavel [1979] ECR 1055, LawLex200900001550JBJ.

Case 25/81 C.H.W. v G.J.H. [1982] ECR 1189, LawLex200900001737JBJ. The regulation applies to interim proceedings, regardless of whether arbitration proceedings are pending, where the provisional measures do not concern arbitration as such - which is excluded by Article 1(2) -, but the protection of rights falling within its material scope of application, See Case C-391/95 Van Uden Maritime v Kommanditgesellschaft in Firma Deco-Line and others [1998] ECR I-7091, LawLex200900000651JBJ.

Case 25/81 C.H.W. v G.J.H. [1982] ECR 1189, LawLex200900001737JBJ: an application for provisional measures to secure the delivery up of a document which might be used as evidence in an action concerning a husband's management of his wife's property does not fall within the scope of the regulation if such management is closely connected with rights in property arising out of a matrimonial relationship.

Case C-104/03 St. Paul Dairy [2005] ECR I-3481, LawLex200900000321JBJ: the application of Article 35 which results in fragmenting the proceedings, which is per se contrary to the spirit of the regulation, is justified only where the requested measure is intended to preserve the factual or legal situation, and not to influence it as in this case, since at the end of the measure in question, the applicant may give up initiating proceedings as to the substance. 

European Business Law

351. Definition

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

351. Definition

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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