1.

In the present case, the Court is called upon to rule on the interpretation of Council Regulation (EC) No 1206/2001 of 28 May 2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters. ( 2 ) The referring court seeks clarification in particular on the interpretation of Article 1(1) of the regulation, which defines the material scope of the regulation by stating the two forms of judicial cooperation which a court of a Member State ( 3 ) can use when it wishes to take evidence in another Member State.

2.

The request for a preliminary ruling was referred by the Hoge Raad der Nederlanden (Supreme Court of the Netherlands) in substantive proceedings brought before a Netherlands court against defendants domiciled in Belgium, the provisional hearing of whom as witnesses was requested by the applicants. Although the persons concerned expressed the wish to be heard in the French language in their country of residence by means of an application to be addressed by the court hearing the proceedings to the Belgian judicial authorities under Regulation No 1206/2001, the court rejected that application, stating that the hearing should take place in the Netherlands and summoning the witnesses to appear before it under national procedural law.

3.

In that context, the Court is called upon to state whether the court of a Member State wishing to hear a witness who is a party to the dispute concerned and resides in the territory of another Member State must use the investigation methods put in place by Regulation No 1206/2001 or may continue to use those provided for by the rules of procedure in force in the State in which it is situated, with the possibility of using coercive measures where the witness is recalcitrant. It must therefore be determined, in an unprecedented manner, whether Regulation No 1206/2001 governs the requesting of evidence by one Member State from another exclusively and exhaustively or whether it leaves room for other means of access to such evidence.

4.

The preamble to Regulation No 1206/2001 states:

‘…

…

…

…’

5.

Article 1(1) and (2) of Regulation No 1206/2001, entitled ‘Scope’, provide:

‘1.   This Regulation shall apply in civil or commercial matters where the court of a Member State, in accordance with the provisions of the law of that State, requests:

2.   A request shall not be made to obtain evidence which is not intended for use in judicial proceedings, commenced or contemplated.’

6.

Articles 10 to 16, which are contained in Section 3 of the regulation, establish the procedures for the taking of evidence by the requested court (so-called ‘indirect’ method of cooperation).

7.

Article 10(2) of Regulation No 1206/2001 states that ‘[t]he requested court shall execute the request in accordance with the law of its Member State’.

8.

Article 11(1) of the regulation provides for the possibility of indirect taking of evidence with the presence and participation of the parties, as follows:

‘If it is provided for by the law of the Member State of the requesting court, the parties and, if any, their representatives, have the right to be present at the performance of the taking of evidence by the requested court.’

9.

Article 13 of the regulation allows the use of coercive measures in the indirect method of taking evidence, as follows:

‘Where necessary, in executing a request the requested court shall apply the appropriate coercive measures in the instances and to the extent as are provided for by the law of the Member State of the requested court for the execution of a request made for the same purpose by its national authorities or one of the parties concerned.’

10.

Article 17 of the regulation, which governs direct taking of evidence by the requesting court (so-called ‘direct’ method of cooperation), provides:

‘1.   Where a court requests to take evidence directly in another Member State, it shall submit a request to the central body or the competent authority … in that State …

2.   Direct taking of evidence may only take place if it can be performed on a voluntary basis without the need for coercive measures.

Where the direct taking of evidence implies that a person shall be heard, the requesting court shall inform that person that the performance shall take place on a voluntary basis.

3.   The taking of evidence shall be performed by a member of the judicial personnel or by any other person such as an expert, who will be designated, in accordance with the law of the Member State of the requesting court.

…’

11.

In the Netherlands, the hearing of witnesses and the provisional hearing of witnesses are governed by the Code of Civil Procedure (Wetboek van Burgerlijke Rechtsvordering; the ‘WBR’). ( 5 )

12.

Article 164 of the WBR provides:

‘1.   The parties may also appear as witnesses.

…

3.   If a party who is required to make a statement as a witness does not appear at the hearing, does not answer the questions put to him or refuses to sign his statement, the court may draw the conclusions from this that it deems necessary.’

13.

Article 165(1) of the WBR provides that ‘(a)ny person summoned to be heard as a witness in accordance with the procedures laid down by law is obliged to come and deliver his testimony’.

14.

Article 176(1) of the WBR provides:

‘Unless otherwise provided by treaty or by EU regulation, if a witness is resident abroad, the judge may request an authority, to be designated by him, of the country where the witness is resident, to hold a hearing, if possible under oath, or may instruct the Netherlands consular agent within whose jurisdiction the place of residence of the witness is located to do so.’

15.

Article 186 of the WBR states:

‘1.   In cases where the law allows witness evidence, a court may immediately order a provisional hearing of a witness, on the application of the party concerned, before proceedings are instituted.

2.   A provisional hearing of witnesses may be ordered by the court on the application of a party where the case has already commenced.’

16.

Article 189 of the WBR provides that ‘[t]he provisions concerning the hearing of witnesses shall also apply to provisional hearings’.

17.

On 3 August 2009, several holders of securities ( 6 ) (‘Kortekaas and Others’) of the company Fortis NV ( 7 ) brought proceedings before the Rechtbank Utrecht (District Court, Utrecht, Netherlands) against three members of the board of directors of that company resident in Belgium ( 8 ) (‘Lippens and Others’) and against the company itself for the award of damages on the grounds that they had acted unlawfully.

18.

In the context of those substantive proceedings, Kortekaas and Others submitted a request to the Rechtbank Utrecht on 6 August 2009 for a provisional witness hearing of Lippens and Others regarding their assertions. The court granted that request by decision of 25 November 2009, stating that the hearing would be conducted by a rechter-commissaris (delegated judge) to be appointed for that purpose.

19.

On 9 December 2009, Lippens and Others made an application to the Rechtbank Utrecht to issue a letter of request so that they could be heard by a French-speaking judge in Belgium, where they are resident. Their application was rejected by order of 3 February 2010.

20.

Following an appeal brought by Lippens and Others, the Gerechtshof te Amsterdam (Regional Court of Appeal, Amsterdam, Netherlands) upheld the order by decision of 18 May 2010 on the basis of Article 176(1) of the WBR, under which the Netherlands judge who is to hear a witness who is resident abroad and does not wish to appear voluntarily before him has the discretion and not the obligation to issue a letter of request. The Gerechtshof te Amsterdam stated that witnesses must in principle be heard by the court before which the substantive proceedings are pending and that, in this case, no special circumstance justified making an exception to this rule in favour of Lippens and Others, particularly as it was opposed by Kortekaas and Others. He added that a hearing in Belgium cannot be justified on linguistic grounds, as Lippens and Others will have the possibility of being assisted by a French-speaking interpreter at their hearing in the Netherlands.

21.

Lippens and Others brought an appeal on a point of law before the Hoge Raad der Nederlanden against the decision of the Gerechtshof te Amsterdam.

22.

The referring court considers that Regulation No 1206/2001 does not preclude a court located in a Member State from summoning a witness resident in another Member State to appear before it in accordance with the rules of procedure in force in the first Member State and attaching the consequences laid down by those rules in the event of his refusal to appear. In its view, neither the wording of nor recitals 2 and 5 ( 9 ) in the preamble to Regulation No 1206/2001 support the argument that the methods of taking evidence provided for by that regulation preclude recourse to other legal instruments. It considers that that regulation merely aims to facilitate the taking of evidence and does not require the Member States to alter the methods of taking evidence laid down by their national procedural law.

23.

Moreover, that court refers to the Convention on the Taking of Evidence Abroad in Civil or Commercial Matters concluded in The Hague on 18 March 1970, which was replaced by Regulation No 1206/2001 in respect of the 11 Member States for which that convention was in force. ( 10 ) It emphasises that it is questionable whether that convention has binding and exclusive effect or leaves room for other instruments, as the Supreme Court of the United States assumed. ( 11 ) The referring court adds, however, that one judgment of the Court of Justice might indicate that Regulation No 1206/2001 could have ‘exclusive effect’ according to the wording used by that court. ( 12 )

24.

Against that background, the Hoge Raad der Nederlanden decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

‘Must Regulation [No 1206/2001], in particular Article 1(1) thereof, be interpreted as meaning that a judge wishing to hear a witness who resides in another Member State must always, for that form of the taking of evidence, use the methods put in place by the regulation, or does he have the power to use the methods provided by his own national procedural law such as summoning the witness to appear before him?’

25.

The reference for a preliminary ruling made by the Hoge Raad der Nederlanden was lodged at the Registry of the Court of Justice on 7 April 2011.

26.

Written observations have been submitted to the Court by Lippens and Others, the Netherlands, Czech, German, Austrian, Polish, Finnish and United Kingdom Governments and the European Commission.

27.

In an annex to the letter of summons to the hearing sent to the parties and other persons concerned, the Court requested a reply at the hearing to the following questions:

28.

At the hearing held on 7 March 2012, Lippens and Others, the Netherlands, Czech, German and Finnish Governments, Ireland and the Commission presented oral argument.

29.

A court of a Member State can validly exercise its powers and make use of its ‘imperium’, that is to say, its power of enforcement, only within the limits of its geographical jurisdiction. Measures of inquiry are an exception to this rule in that they can be taken over the whole of national territory. Nevertheless, in view of the principle of territoriality in international law, which is linked to the principle of State sovereignty, the court cannot normally take action to enforce such measures in another Member State.

30.

As the preamble to Regulation No 1206/2001 emphasises, ‘it is often essential for a decision in a civil or commercial matter pending before a court in a Member State to take evidence in another Member State [… and therefore necessary] to continue the improvement of cooperation between courts of Member States in the field of taking of evidence’. ( 13 ) That regulation is therefore a response to the growing need, within the European Union, to be able to gather evidence in a Member State other than the one in which judicial proceedings have commenced or are likely to commence ( 14 ) where the dispute has a foreign element.

31.

As the concept of the taking of evidence is not defined in Regulation No 1206/2001, the Court has already been called upon to define its outlines by interpreting the regulation. ( 15 ) It seems to me to be undeniable that the hearing of a witness, as envisaged in the main proceedings, is covered by that concept. ( 16 )

32.

The main objective of Regulation No 1206/2001 is to determine how a court of a Member State can take evidence in a simplified and accelerated manner ( 17 ) which is located in the territory of another Member State in collaboration with that State’s authorities. For this purpose, it has two methods of judicial cooperation at its disposal, which are set out in summary form in Article 1(1) of the regulation:

33.

In essence, the referring court is asking the Court, for the first time, whether, where a court wishes to perform taking of evidence with a cross-border element, such as the hearing of a witness located in the territory of another Member State, it is obliged to choose one of the two methods of obtaining evidence provided for by Regulation No 1206/2001 described above, namely indirect taking of evidence through a requested court or direct taking of evidence by the requesting court, as Lippens and Others alone argue before the Court, or whether that court can use the methods laid down by the procedural law of the Member State in which it is situated. The reference for a preliminary ruling makes it necessary to define the material scope of Regulation No 1206/2001.

34.

Other issues are implicitly raised by the grounds of the order for reference and by the questions asked by the Court to be answered orally. They concern certain practical consequences of the interpretation that will be given in the forthcoming judgment: firstly, the possibility for the court requesting the hearing of using coercive or unfavourable measures ( 21 ) if the witness residing in another Member State refuses to give evidence and, secondly, the possible effect of the witness who is to be heard being a party to the dispute.

35.

The Court’s case-law does not provide any clear answer to the question asked by the referring court.

36.

In fact, the judgment in St. Paul Dairy, referred to in the order for reference, which concerns the interpretation of the rules governing jurisdiction contained in the Brussels Convention, merely alludes to Regulation No 1206/2001 ( 22 ) and mentions it only as an obiter dictum, without in any way clarifying the matter referred to the Court in the present case. The same applies to the judgment in Aguirre Zarraga, which also concerned jurisdiction, which suggests that the national court can choose whether or not to use the mechanism provided for by Regulation No 1206/2001. ( 23 ) In view of the special nature of those two judgments, which did not concern the interpretation of the regulation but that of provisions with a very different purpose and scope, ( 24 ) even if they are also intended to create a European judicial area, the Court must here state more clearly on what conditions application of the regulation is binding on a court.

37.

Although it is the only judgment which, to my knowledge, has been delivered by the Court ( 25 ) on the interpretation of Regulation No 1206/2001 itself, Weryński does not seem to me to provide the evidence necessary for the Court to give a ruling in the present case. ( 26 )

38.

I should point out straightaway that, along with the majority of the parties, I consider that, where a court of a Member State seeks to obtain evidence from another Member State, it is obliged to use the mechanisms provided for by Regulation No 1206/2001 only in certain situations, and not systematically, for the reasons set out below.

39.

The wording of Article 1(1) of Regulation No 1206/2001, of which the referring court is, in particular, requesting an interpretation, makes it possible in part to answer the question whether the two methods of obtaining cross-border evidence which it describes must be applied broadly, that is to say in all cases where a foreign element, such as the witness’s place of residence in the present case, links the evidence in question to another Member State in civil or commercial matters.

40.

By stating, as a preliminary condition, ‘where the court of a Member State … requests’, ( 27 ) that article, in my view, limits the substantive scope of Regulation No 1206/2001 to the two specific cases which it then describes. It therefore reserves its applicability for cases where the judge seeking to perform the taking of evidence considers the cooperation of a court ‘of another Member State’ to be necessary or the judge wishes to perform the taking of evidence himself ‘in another Member State’. Conversely, the regulation is not applicable to the situation if the judge considers that he can obtain the evidence, even if it is situated in another Member State, without having to use one of these means of accessing the evidence, that is without having to request the intervention of the judicial authorities of that Member State and without having to go there himself.

41.

Similarly, recitals 7 and 15 in the preamble to Regulation No 1206/2001 indicate that its purpose is to enable a court of a Member State to take evidence ‘in another Member State’ and not in national territory, as the Netherlands court sought to do in the main proceedings by summoning the witness to appear before it.

42.

Moreover, on the basis of a teleological analysis and not merely an analysis of the wording, I would add that recital 2 in the preamble to the regulation states that the aim of the regulation is that ‘cooperation between courts in the taking of evidence should be improved, and in particular simplified and accelerated’, which is reiterated at the end of recital 7. The title of Regulation No 1206/2001 also emphasises that it aims solely to establish mechanisms facilitating ‘cooperation between the courts of the Member States’ and not to put an end to the methods of obtaining evidence in force in the Member States through harmonisation. Where such cooperation is not essential or sought by a court, the simplified judicial cooperation methods ( 28 ) established by that provision should not, in my view, be used even if, as in the main proceedings, the witnesses, who are also parties in this case, request that they be used.

43.

In fact, Regulation No 1206/2001 does not seek to interfere with the functions of the competent court by restricting its power to ensure the proper conduct of procedure within the limits of the rules of international law, European Union law or national law imposed on it, but reinforces that power and delimits it in order to protect the rights of the parties and respect the prerogatives of the other Member States. I consider that the purpose of that instrument is to facilitate the cross-border activity of the courts of the Member States and not to impede it by restricting the means which they have of taking evidence.

44.

The very spirit of the regulation would be called into question if its mandatory implementation led to a reduction in the means of gathering evidence by excluding the possibility for the court of a Member State of using alternative evidence-gathering methods where it considers them to be preferable to the methods of cross-border judicial cooperation contained in Regulation No 1206/2001. ( 29 )

45.

I would point out in this regard that Article 21(2) of the regulation, in conjunction with recital 17 in the preamble thereto, makes clear that the intention is not to preclude Member States from maintaining or concluding agreements or arrangements between two or more of them to ‘further’ ( 30 ) facilitate cooperation in the taking of evidence, provided that they are compatible with the regulation. This reservation shows that, in their concern for efficiency, the drafters of Regulation No 1206/2001 were not averse to the idea of leaving room for other instruments in this area, where they might prove to be more appropriate, in terms of the guarantees they provide and their actual effects, in the light of the substance of the dispute.

46.

In practice, methods of inquiry provided for by national law may be just as efficient as or even more so than those provided for by Regulation No 1206/2001. Thus it is clear from the Commission report assessing the application of Regulation No 1206/2001 of 5 December 2007 ( 31 ) that, according to the empirical study carried out, ( 32 ) in most cases, requests for the taking of evidence under the regulation were executed within a longer period than that provided for in Article 10(1), namely 90 days after the requests were received, which sometimes extended to more than 6 months. In these circumstances, it is understandable that a court of a Member State may choose a method that does not require intermediaries, such as the direct summoning of a witness to give evidence before it, in order to ensure that the procedure is conducted quickly and efficiently.

47.

I would point out that this interpretation of the provisions of the regulation in no way undermines its effectiveness, as it is intended to apply not to all situations where evidence is located in another Member State, but only to the situation where the court which is seeking to obtain it recognises that it requires the assistance of the authorities of another Member State. In such a case, it must choose between the indirect method of taking evidence, which has the disadvantage of having to rely on the evidence being taken well by the requested court and of the court called upon to rule on the proceedings not being able to hear the witness itself, ( 33 ) and the direct method of taking evidence, which requires the authorisation of the Member State in which the evidence to be obtained is located ( 34 ) and deprives the court of the possibility of using coercive measures. ( 35 ) An exclusive application of Regulation No 1206/2001 would therefore result, at least potentially, in the quality of the hearing of witnesses located outside national territory being sometimes poorer than in a situation where the regulation did not exist. That cannot be regarded as satisfactory, bearing in mind the regulation’s aim of facilitating the taking of evidence.

48.

In view of these factors, I consider that the European legislature did not intend that the judicial cooperation methods provided for by Regulation No 1206/2001 should be applied systematically where the court of a Member State wishes to take evidence linked to another Member State. I consider this to be obligatory only in the case, which is not that applicable in the main proceedings, where the taking of evidence must be performed outside the territory of the Member State of the court concerned. It seems to me to be appropriate in practice that, in the interests of the sound administration of justice, that court should be able to assess on a case-by-case basis which method of taking evidence, among those derived from national law and those derived from European Union law, will be most effective in obtaining the evidence which it requires for the purpose of giving a ruling.

49.

Having thus explained the reasons why I consider, like the Member States submitting observations and the Commission, that the court of a Member State wishing to hear a witness residing in another Member State is required to use the methods of cooperation provided for by Regulation No 1206/2001 only if that court wishes him to be heard in the other Member State by means of one or other of those methods, but not if it deems it preferable that he should come to be heard in its national territory, I shall now examine the specific consequences of this proposed interpretation to the Court with regard to two particular cases mentioned in the reference for a preliminary ruling.

50.

According to the terms of the question submitted, the referring court is not expressly asking the Court whether coercive measures ( 36 ) or unfavourable measures ( 37 ) might be used by a court of a Member State against a witness residing in another Member State who does not wish to comply with the summons to appear before it.

51.

However, this question is explicit in the grounds of the order for reference, since the Hoge Raad der Nederlanden states that, in its view, ‘Regulation No 1206/2001 does not preclude … the power of a Netherlands judge to summon a witness who resides in another Member State to appear before him, and the Regulation likewise does not preclude the judge from attaching to the non-appearance of the witness the consequences laid down in its national procedural law’. ( 38 )

52.

As a preliminary point, I recognise that this question does not arise in undoubtedly the most normal situation in practice, where the witness residing in another Member State spontaneously accepts that he must go to give evidence before the court that summoned him. As the participation in the taking of evidence is then voluntary, there is no need in that case to use the judicial cooperation mechanisms provided for by Regulation No 1206/2001.

53.

Nevertheless, in cases where a witness refuses for no valid reason ( 39 ) to be heard by the competent court and if that court still intends to hear him, a distinction should be drawn between two situations.

54.

Firstly, if, as the Netherlands court wished to do in the main proceedings, the competent court wishes to hear a witness residing in another Member State in the territory of the Member State in which it is situated, in that case it can use coercive measures against the person concerned only within the limits set by the rules of public international law. ( 40 ) In the light of the exchange of argument and evidence at the hearing, it appears to me that the Member States submitting observations all share the view that it is not possible to use such measures against a witness located outside national territory except in special cases ( 41 ) or if it is permitted by a bilateral or multilateral convention which is binding on the two Member States concerned.

55.

European Union law, as it currently stands, does not contain any rules governing this matter. However, the general principles of European Union law, such as the principle of proportionality, limit the discretion available to the Member States in this area.

56.

Secondly, if the hearing of such a witness were to take place in the territory of the Member State in which he resides because the person concerned refuses to appear before the court of another Member State which insists on it, that court would be obliged to use either the direct or the indirect method of taking evidence provided for by Regulation No 1206/2001, as stated above.

57.

If that court wished to perform the taking of evidence abroad itself by the so-called ‘direct’ method, it could do so only ‘on a voluntary basis’ and ‘without … coercive measures’, in accordance with Article 17(2) of the regulation, which precludes the witness from being forced to be heard directly, unless cooperation agreements exist between the Member States concerned.

58.

Where, on the other hand, the performance of the taking of evidence is delegated to a court of the Member State in which the witness is resident, Article 13 of the regulation allows the requested court to ‘apply the appropriate coercive measures in the instances and to the extent as are provided for by the law of the Member State of the requested court for the execution of a request made for the same purpose by its national authorities or one of the parties concerned’. However, it seems to me that the decision to adopt a coercive measure authorised by local law against a resistant witness is not a matter for the court hearing the substantive proceedings but for the requested court, which must assess whether it is ‘necessary’ within the meaning of Article 13 in limine. ( 42 ) Moreover, as there is no penalty for refusing to implement the coercive measure, it is likely to be ineffective in practice, which reveals one of the limitations of the system put in place by Regulation No 1206/2001.

59.

An even more special case of the hearing of a witness may arise where, as in the main proceedings, the person concerned is also a party to the substantive proceedings.

60.

As is clear from the questions that it submitted to the parties, the Court intended to assess whether it is decisive for the purposes of answering the question referred whether the witness is a party to, or a third person in relation to, the dispute.

61.

In this regard, it asked the Member States that made oral submissions to state whether the fact of introducing such a distinction in the answer to the question referred would have an impact on the national rules of procedure in force in their respective territories.

62.

It is not necessary, in my view, to rule on that matter in order to answer the question referred, as the referring court has not formulated, even implicitly, a request to that effect. However, as the parties to the main proceedings and the Member States that have submitted observations were asked to discuss it at the hearing, I would like to make a few points in connection with it.

63.

It should be noted that Regulation No 1206/2001 does not provide for a difference in treatment based on the status of the persons heard as witnesses depending on whether or not they are parties to the substantive proceedings. Article 11 of the regulation merely refers, in connection with the indirect method of taking evidence, to the possible presence and participation of a party, either in person or through a representative, where the requested court performs taking of evidence such as the hearing of a witness; it should be noted that the witness might be a third person or indeed an opposing party since the wording of the article makes no distinction in that regard.

64.

In my view, where the witness to be heard is a party to the dispute and agrees to appear before the court of another Member State for that purpose, Regulation No 1206/2001 should not interfere and the hearing can take place if the lex fori so permits. Where such a witness refuses to or does not appear in the territory of the Member State in which the court is situated, the national law should also determine what specific consequences the court concerned may attach to such behaviour where that law allows a party to be heard as a witness.

65.

I would point out that, from the viewpoint of international law, the legal situation of a witness who is also a party differs from that of a witness who is not a party in that the international jurisdiction of the court concerned extends its judicial power and therefore its power to use coercive measures such as fines ( 43 ) against parties to the dispute even if they are resident abroad, which is not the case for other witnesses.

66.

On the other hand, where that court wishes to hear a party as a witness in the territory of the Member State in which that individual is resident by hearing the party itself or by having the party heard by a court of that other Member State, it would have to use one of the two methods of cooperation provided for by Regulation No 1206/2001 in order to perform such cross-border taking of evidence, if necessary using the coercive measures permitted by Article 13 of the regulation, in the same way as if the witness were a third party in relation to the dispute.

67.

In the light of the foregoing considerations, I propose that the Court reply as follows to the question submitted for a preliminary ruling by the Hoge Raad der Nederlanden:

Council Regulation (EC) No 1206/2001 of 28 May 2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters, in particular Article 1(1) thereof, must be interpreted as meaning that a court of a Member State that wishes to hear a witness who is resident in another Member State in connection with a dispute relating to such matters is obliged to use the simplified judicial cooperation methods provided for by the regulation only where it decides to perform the taking of evidence either by requesting the assistance of the competent court of the other Member State or by requesting authorisation to take evidence directly in the territory of that State. Where, on the other hand, as in the main proceedings, a court wishes to hear a witness residing in another Member State in the territory of the Member State in which it is situated, it has the option of using the methods provided for by its national procedural law, such as, for example, summoning the witness to appear before it, if it considers that such methods will be sufficiently effective in the case in question.