Postscript: The Hoge Raad issued its final ruling, following the ECJ’s judgment, in June 2013. Most of Lippens’ arguments had become redundant following the ECJ’s judgment. The Hoge Raad rejected his argument that to hear him in The Netherlands would be an infringement of Article 6 ECHR’s right to fair trial.
In Case C-170/11 Lippens, the Court has today confirmed the limitations to the scope of application of the evidence Regulation, Regulation 1206/2001. The request for a preliminary ruling was referred by the Hoge Raad der Nederlanden (Supreme Court) (Netherlands) in substantive proceedings brought before a Dutch court against defendants domiciled in Belgium, the provisional hearing of whom as witnesses was requested by the applicants. The persons concerned wanted to be heard in French in their country of residence (Belgium) 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 Dutch 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.
The core question therefore was whether the evidence Regulation governs the obtaining of evidence in civil and commercial cases by one Member State from another exclusively and exhaustively or whether it leaves room for other means of access to such evidence.
Following the Opinion of Jääskinen AG, the Court confirmed that the evidence Regulation offers the national courts assistance, should they wish to request the co-operation of the authorities of other Member States to obtain evidence outside of their territory, but they they are not obliged to take the Regulation route should they consider their national procedural laws to suffice (or indeed offer a better alternative). In the case at issue, Lippens et al also appeared as parties in the Dutch proceedings. Dutch procedural law allows for the summoning of parties as witness. The Dutch courts therefore of course prefer the efficiency of those national proceedings given that the witnesses in such cases are already present (or represented), rather than having to take the roundabout way of the evidence Regulation.
The ECJ moreover conceded that in its current state, the evidence Regulation with its strict conditions and delays, is likely to be less efficient than national proceedings.
A finding of the Regulation as being exhaustive in the field of cross-border obtaining of evidence in civil and commercial cases, would have been very surprising. However it is good to have the ECJ confirm it, for its interpretation of the scope of European private international law is extensive indeed.