Expert evidence in France and Germany n°5/2021- Newsletter
Jurisdiction to order an expert evidence proceeding in a dispute involving French and German parties.
Which court has jurisdiction to order an evidence proceeding before any trial in a European dispute?
The question may, for example, arise where the measure is to be carried out on the territory of a State other than the one whose courts have jurisdiction to hear the case on the merits.
Let’s take an example: a German supplier has sold components of an industrial installation to a French buyer. The installation for which these components are intended is located in France. Problems arise which could be linked to a defect in the German components. The sales contract contains a clause conferring jurisdiction to German courts.
Do the parties have to refer their request for expert evidence to a German court or can they refer it to the French court on the grounds that the industrial plant to be investigated is located in France?
The defendant can certainly be sued before the court that has jurisdiction as to the substance of the matter, ie. the German court. By contrast, the competence of French courts is less obvious in the light of a recent decision of the Cour de Cassation.
Basic principle: the Court that has jurisdiction on the merits can also order expert evidence before any trial.
In the case of a European dispute, the rules on jurisdiction are laid down in EU Regulation 1215/2012 of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, known as “Brussels 1 bis”. This Regulation always gives precedence to the common will of the parties to determine the competent court to hear the case on the merits (Article 25 of the Regulation). Failing such an agreement, it determines jurisdiction according to the defendant’s domicile and/or the type of contract. The question may certainly arise whether an expert assessment prior to any trial constitutes a provisional or protective measure within the meaning of the Regulation (see below). In that case, jurisdiction could also be determined under Article 35 (see below). However, in any case, the court with jurisdiction as to the substance of the case also has jurisdiction to issue provisional and protective measures (preamble of the Regulation §33; ECJ, judgment of 17 Nov. 1998, no. C-391/95, Van Uden Maritime BV).
In the situation described above, the German court, designated by a choice of court clause, would have jurisdiction to decide upon a request for an expert opinion before any trial. In practice, the parties could request the expert assessment within an independent evidentiary procedure (selbständiges Beweisverfahren) based on §§ 485 ff. of the German Code of Civil Procedure (“ZPO”).
This measure can be ordered by the German judge, even though the investigations are to be carried out on French territory. According to the Court of Justice of the European Union, the German judge will not necessarily have to request the authorisation of the French authority provided for by Article 17 of the Evidence Regulation (n°1206/2001) (CJEU, judgment of 21 February 2013, no. C-332/11, ProRailBV v XpedysNV and others). (NB: This Regulation has been amended and its new version (Regulation 2020/1783) will be applicable from 1 July 2022.)
A complementary competence of the French judge to order an evidence proceeding on its territory?
The question has arisen as to whether pre-trial expert assessment constitutes a “provisional, including protective, measure” within the meaning of the Brussels 1 bis Regulation. If so, jurisdiction could – also – be determined under Article 35.
According to this article, “application may be made to the courts of a Member State for such provisional, including protective, measures as may be available under the law of that Member State, even if the courts of another Member State have jurisdiction as to the substance of the matter.”
The European Court of Justice requires 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 (Van Uden judgment cited above), e.g. the measure is executed on its territory.
Moreover, according to the ECJ, this text only covers measures that “are intended 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 “; in other words, protective measures. Conversely, a measure requested “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 a provisional and protective measure within the meaning of Article 35 of the Brussels 1 bis Regulation (ECJ, judgment of 28 April 2005, no. C-104/03, St Paul Dairy).
Based on Article 35 of the Brussels 1 bis Regulation, the Cour de Cassation (the highest French civil court) had clearly admitted the competence of French courts to order, before any trial, an expert assessment to be carried out in France, without verifying its protective nature (Cass. 1re civ., judgment of 14 March 2018, No 16-19.731).
However, a recent decision of the Cour de Cassation (Cass. 1re civ., judgment of 27 January 2021, n°19-16.917) raises questions. Does it call into question the 2018 case law?
In this case, a German and a French company had concluded a contract with a jurisdiction clause in favour of the Munich court. The German company suspected a breach of contract by the French company. It therefore requested the French court to appoint a bailiff to carry out IT investigations in the premises of the French company (Article 145 Code de procédure civile (CPC) (French civil procedure code). The Court of Appeal refused this request on the grounds that the sole purpose of the measure was to prepare a possible trial on the merits, which demonstrates that it was evidential in nature, but neither provisional nor protective.
The Cour de Cassation overturned the decision, considering that the Court of Appeal should have investigated whether the seizure of the opposing electronic documents “was not intended to protect the German company against the risk of losing evidence whose preservation could determine the outcome of the dispute. »
This judgment thus clearly recalls that an in futurum measure with evidentiary purposes can also have the purpose of avoiding the deterioration of evidence (which corresponds to the protective purpose required by the ECJ). French courts will then be competent to order such a measure to be executed in France.
However, it is questionable whether this decision on a bailiffs’ report requires the judge to determine in each case, including in the case of judicial expertise, whether the measure has a protective purpose. Indeed, in the case that gave rise to the 2021 judgment, the choice of requesting a bailiff’s report before French courts had very probably been made because German law does not have a measure identical to a bailiff’s report.
Contrary, as mentioned above, it is perfectly possible to request the designation of a court expert before German courts, even if it has to be carried out in France or in another Member State. Almost all Member States of the European Union have some form of expert evidence proceeding (see the in-depth analysis by Alain Nuée in the European Parliament, PE-519.211 “Civil-law expert reports in the EU: national rules and practices” as well as the information on finding an expert in EU countries). From this point of view, the risks of forum shopping appear to be less significant in the area of expertise. However, the substantial differences in the implementation of expertise procedures in the Member States may lead the parties to consider a particular country to be better suited to their case.
The right jurisdiction for in futurum expert evidence – a choice worth considering.
In conclusion, the judge on the merits will always have jurisdiction to order a judicial expertise measure. In view of recent case law, a claimant who wishes to request the designation of a Court expert before a French court which does not have jurisdiction on the merits, would be well advised to demonstrate :
- that the operations must take place in France and therefore have a real connection with the territory of the French court, and
- that expertise is necessary because of the risk of losing evidence if findings are not made quickly.
In any event, it should be carefully assessed whether requesting expert evidence in France when a German judge would have jurisdiction on the merits is appropriate. Indeed, as the procedures for carrying out this investigative measure are quite different in the two countries, judges tend to rely more easily on expert reports drawn up under conditions with are familiar to them.