Case C-332/11

ProRail BV

v

Xpedys NV and Others

(Request for a preliminary ruling from the Hof van Cassatie)

‛Regulation (EC) No 1206/2001 — Cooperation in the taking of evidence in civil and commercial matters — Direct taking of evidence — Designation of an expert — Task carried out partly in the Member State of the referring court and partly in another Member State’

Summary — Judgment of the Court (First Chamber), 21 February 2013

1. Questions referred for a preliminary ruling — Jurisdiction of the Court — Limits — Jurisdiction of the national court — Establishment and assessment of the facts the dispute — Necessity of a question referred and relevance of the questions raised — Assessment by the national court

   (Art. 267 TFEU)

2. Judicial cooperation in civil matters — Taking of evidence in civil and commercial matters — Regulation No 1206/2001 — Scope — Taking of evidence ordered by one of the parties in proceedings for interim measures — Included

   (Council Regulation No 1206/2001, Art. 1(1) and (2))

3. Judicial cooperation in civil matters — Taking of evidence in civil and commercial matters — Regulation No 1206/2001 — Aim

   (Council Regulation No 1206/2001, Recitals 2, 7, 8, 10 and 11)

4. Judicial cooperation in civil matters — Taking of evidence in civil and commercial matters — Regulation No 1206/2001 — Substantive scope — Expert investigation carried out in part directly in another Member State — No obligation for the court ordering the taking of evidence to follow the procedure laid down by the regulation — Limits — Whether the powers of the public authority of the requested Member State are affected

   (Council Regulation No 1206/2001, Arts 1(1)(b) and 17)

1.  See the text of the decision.

   (see paras 30, 33)

2.  See the text of the decision.

   (see paras 34, 35)

3.  See the text of the decision.

   (see paras 43-46)

4.  Articles 1(1)(b) and 17 of Regulation No 1206/2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters must be interpreted as meaning that the court of one Member State, which wishes the task of taking of evidence entrusted to an expert to be carried out in another Member State, is not necessarily required to use the method of taking evidence laid down by those provisions to be able to order the taking of that evidence.

   In certain circumstances it may be simpler, more effective and quicker for the court ordering such an investigation to take such evidence without having recourse to Regulation No 1206/2001. However, in the absence of such an agreement or arrangement between the Member States within the meaning of Article 21(2) thereof, the method of taking evidence laid down in Articles 1(1)(b) and 17 of Regulation No 1206/2001 is the only means to enable the court of a Member State to carry out an expert investigation directly in another Member State since it might, in certain circumstances, affect the powers of the Member State in which it takes place, in particular, where it is an investigation carried out in places connected with the exercise of such powers or in places to which access or other action is, under the law of the Member State in which the investigation is carried out, prohibited or restricted to certain persons.

   (see paras 45, 47, 48, 54, operative part)