441 Jurisdiction of the court

The Dutch court that is able to base its jurisdiction on the grounds of jurisdiction of Article 4 or 7-26 Brussels Ibis (2 or 5-24 Brussels I or EVEX Convention) is also competent to hear an application for a voorlopig getuigenverhoor for the purpose of that principal action. A voorlopig getuigenverhoor cannot be designated as a provisional or a preservation measure within the meaning of Article 35 Brussels Ibis (31 Brussels I) if the purpose of the voorlopig getuigenverhoor is not the prevention of the loss of evidence. It is uncertain whether the voorlopig getuigenverhoor with a preservation function can be considered to be a measure within the meaning of Article 35 Brussels Ibis (31 Brussels I) (par. 4.2.2.2). On the basis of the Evidence Regulation, the competent Dutch court has the right in accordance with the Dutch provisions to request the competent court of another Member State to hold a voorlopig getuigenverhoor or to request the central body or competent authority of another Member State to hold a voorlopig getuigenverhoor directly in that other Member State. This is subject to the condition that the request is made with the aim of enabling the parties to obtain evidence for use in the proceedings that have been initiated or that are intended. The Evidence Regulation does not have exclusive effect (par. 4.2.2.3).

In the event the proceedings are already pending, only the Dutch court before which the proceedings are pending has subject-matter and territorial jurisdiction. If no proceedings have been initiated as yet, the Court under whose subject-matter jurisdiction the case will likely come will have subject-matter jurisdiction to hear the application for holding a voorlopig getuigenverhoor. The court that will presumably be competent to hear the case if it is brought will first have territorial jurisdiction and secondly the court within whose jurisdiction the persons or the majority of the persons to be examined as witnesses live or reside (par. 4.2.3 en 4.2.4).