Abstract
Provisional measures can be of utmost importance to creditors especially in relationships with a cross-border element. The Regulation 1215/2012 is the legal source that provides rules regarding the jurisdiction to issue a provisional measure but also offers imperfect provisions regarding the recognition and enforcement of foreign provisional measures issued in other Member States of the European Union. Due to the inadequate regulation, CJEU case law has played an important role, but nevertheless the article finds and opens new questions that have not yet been answered.
Highlights
Provisional measures are of the utmost importance to creditors because they either secure the effectiveness of the future enforcement of the creditor’s claim or provide temporary regulation of the legal relation in dispute
The relevant provisions are determined by Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters1 (Regulation 1215/2012), which is the successor of Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters2 (Regulation 44/2001)
There currently is no system of rules on jurisdiction for the issuance of provisional measures in disputes with a European element and there is no special regulation of the recognition and enforcement of these provisional measures in other Member States
Summary
The only article of the Regulation 1215/201210 that explicitly governs provisional measures has almost identical wording to the previous Regulation 44/200112 and the Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters of 26 January 196813 (Brussels Convention). we. As envisaged in Article 35 of the Regulation 1215/2012, a creditor has the option to either apply for a provisional measure at a court that has jurisdiction pursuant to the Regulation 1215/2012 as to the substance of the matter, or at a court whose jurisdiction (to issue a provisional measure) is determined according to the national law of this Member State. A creditor can always apply for a provisional measure at a court that has jurisdiction pursuant to the Regulation 1215/2012 as to the substance of the matter When using this rule, there is no need for there to be any (special) connection between the specific provisional measure and the jurisdiction of the court/Member State. If the object of a provisional measure is such that the court recognizes that it is supposed to be enforced in its Member State, and if the court appreciates that its jurisdiction for a provisional measure derives from its national legislation, there is no need to waste time dealing with the rules on jurisdiction in the Regulation 1215/2012
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