Case Law 1968 Brussels Convention
Article 24 of the 1968 Brussels Convention
ECJ
28 April 2005 ‘St. Paul Dairy v Unibel’ (Case
C-104/03, ECR 2005 p. I-03481) 
Article 24 to the 1968 Brussels Convention must be interpreted as meaning that a measure ordering the hearing of a witness for the purpose of enabling the applicant to decide whether to bring a case, determine whether it would be well founded and assess the relevance of evidence which might be adduced in that regard is not covered by the notion of "provisional, including protective, measures". In the absence of any justification other than that interest of the applicant, the grant of such a measure does not pursue the aim of the jurisdiction laid down by way of derogation by Article 24 of the Convention, which is to avoid causing loss to the parties as a result of the long delays inherent in any international proceedings and to preserve a factual or legal situation so as to safeguard rights the recognition of which is otherwise sought from the court having jurisdiction as to the substance of the case (see paras 12-13, 17, 25, operative part).
ECJ
27 April 1999 ‘Mietz v Intership Yachting Sneek’ (Case
C-99/96, ECR 1999 p. I-02277)
A judgment cannot be the subject of an enforcement order under Title III of the 1968 Brussels Convention in a case where:
- it was delivered at the end of proceedings which were not, by their very nature, proceedings as to substance, but summary proceedings for the granting of interim measures;
- the defendant was not domiciled in the Contracting State of the court of origin and it does not appear from the judgment that, for other reasons, that court had jurisdiction under the Convention as to the substance of the matter;
- it does not contain any statement of reasons designed to establish the jurisdiction of the court of origin as to the substance of the matter
and
- it is limited to ordering the payment of a contractual consideration, without, on the one hand, repayment to the defendant of the sum awarded being guaranteed if the plaintiff is unsuccessful as regards the substance of his claim or, on the other, the measure sought relating 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.
In such a case, the court to which application for enforcement is made must conclude that the measure ordered is not a provisional measure within the meaning of Article 24 of the 1968 Brussels Convention.The fact that the defendant appears before the court dealing with interim measures in the context of fast procedures intended to grant provisional or protective measures in case of urgency and which do not prejudice the examination of the substance cannot, by itself, suffice to confer on that court, by virtue of Article 18 of the 1968 Brussels Convention, unlimited jurisdiction to order any provisional or protective measure which the court might consider appropriate if it had jurisdiction under the Convention as to the substance of the matter.
ECJ
17 November 1998 ‘Van Uden v Deco-Line’ (Case
C-391/95, ECR 1998 p. I-07091)
1. On a proper construction of Article 5, point 1, of the 1968 Brussels Convention, the court which has jurisdiction by virtue of that provision also has jurisdiction to order provisional or protective measures, without that jurisdiction being subject to any further conditions. However, where the parties have validly excluded the jurisdiction of the courts in a dispute arising under a contract and have referred that dispute to arbitration, it is only under Article 24 of the Convention that a court may be empowered to order such measures, since it cannot do so as the court having jurisdiction on the substance of the dispute. In that connection, where the subject-matter of an application for provisional measures relates to a question falling within the scope ratione materiae of the 1968 Brussels Convention, that Convention is applicable and Article 24 thereof may confer jurisdiction on the court hearing that application 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.
2. The granting of provisional or protective measures on the basis of Article 24 of the 1968 Brussels Convention on, inter alia, the existence of a real connecting link between the subject-matter of the measures sought and the territorial jurisdiction of the Contracting State of the court before which those measures are sought. A measure ordering interim payment of a contractual consideration does not constitute a provisional measure within the meaning of that article unless, first, repayment to the defendant of the sum awarded is guaranteed if the plaintiff is unsuccessful as regards the substance of his claim and, second, 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.
ECJ
26 March 1992 ‘Reichert v Dresdner Bank’ (Case
C-261/90, ECR 1992 p. I-02149)
Provisional or protective measures within the meaning of Article 24 of the 1968 Brussels Convention must be understood as being measures which, in matters within the scope of the Convention, 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.
Whilst an action such as the action paulienne enables the creditor' s security to be protected by preventing the dissipation of his debtor' s assets, its purpose is that the court may vary the legal situation of the assets of the debtor and that of the beneficiary of the disposition effected by the debtor, and it cannot be described as a provisional or protective measure.
ECJ 31 March 1982 ‘C.H.W. v G.J.H.’ (Case 25/81, ECR 1982 p. 01189)
1. An application for provisional measures to secure the delivery up of a document in order to prevent it from being used as evidence in an action concerning a husband's management [administration] of his wife's property does not fall within the scope of the 1968 Brussels Convention if such management is closely connected with the relationship resulting directly from the marriage bond.
2. Article 24 of the 1968 Brussels Convention may not be relied on to bring within the scope of the Convention provisional or protective measures relating to matters which are excluded from it.
ECJ 6 March 1980 ‘Louise de Cavel v Jacques de Cavel’ (Case 120/79, ECR 1980 p. 00731)
1. The subject of maintenance obligations falls of itself within the concept of “civil and commercial matters” within the meaning of the first paragraph of Article 1 of the 1968 Brussels Convention and accordingly comes within the scope of that Convention since it has not been excepted by the second paragraph of that Article.
2. A claim falls within the scope of the 1968 Brussels Convention where its own subject-matter is one of the matters covered by that Convention even if it is ancillary to proceedings which, because of their subject-matter, do not come within this Convention's sphere of application.
3. The interim or final nature of a judgment is not relevant to whether the judgment comes within the scope of the 1968 Brussels Convention.
4. The 1968 Brussels Convention is applicable, on the one hand, to the enforcement of an interlocutory order made by a French court in divorce proceedings whereby one of the parties to the proceedings is awarded a monthly maintenance allowance and, on the other hand, to an interim compensation payment, payable monthly, awarded to one of the parties by a French divorce judgment pursuant to article 270 et seq of the French civil code.
ECJ 27 March 1979 'Jacques de Cavel v Louise de Cavel' (Case 143/78, ECR 1979 p. 01055)
In relation to the matters covered by the 1968 Brussels Convention, no legal basis is to be found therein for drawing a distinction between provisional and definitive measures.