Opinion of Mrs Advocate General Rozės

Mr President,

Members of the Court,

The Hoge Raad [Supreme Court] of the Netherlands has applied to the Court for a preliminary ruling in the case W. v H.

These are the facts:

Proceedings are pending in the Netherlands between Mr H., a Netherlands national residing in Belgium, and his wife (W.), who is also a Netherlands national residing in Belgium, concerning the management by the husband of his wife's separate property. In the proceedings the wife wishes to use as evidence the terms of a codicil drawn up by her husband which is now in the possession of her advocate in Rotterdam.

The couple are also suing for divorce in the Netherlands.

The husband applied to the President of the Arrondissementsrechtbank [District Court], Rotterdam, seeking as a matter of urgent interlocutory relief an order requiring the delivery up of that codicil and an injunction restraining his wife from using its content against him in legal proceedings or otherwise.

The wife appeared at the interlocutory hearing and challenged the jurisdiction of the President and, in the alternative, contested the substance of the application for protective relief.

The President of the Rotterdam court held that he had jurisdiction but found against the husband on the substance.

The husband then appealed from that judgment to the Gerechtshof [Regional Court of Appeal], The Hague, and the wife cross-appealed on the ground that the President of the Rotterdam court had erred in finding that he had jurisdiction.

The Court of Appeal rejected the cross-appeal and in its decision on the main appeal overturned the interlocutory judgment. It ordered the codicil to be delivered up to the husband's advocate and granted an injunction restraining the wife from using the document upon penalty of a fine.

Both the husband and the wife appealed in cassation against that judgment, the wife lodging the main appeal, the husband a cross-appeal.

The main appeal once again raises the question of the jurisdiction of the President of the Rotterdam court to entertain the application for provisional relief to restrain use being made of the codicil. These, then, are the circumstances in which the Hoge Raad of the Netherlands submits to the Court under Articles 1 and 2 of the Protocol on the interpretation of the Brussels Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters the following questions:

In civil and commercial matters, within the meaning of Article 1 of the Convention, the ordinary rule laid down in the first paragraph of Article 2 thereof confers jurisdiction on the couns of the State in which the defendant is domiciled. In the present case the wife is domiciled in Belgium.

However, rights in propeny arising out of a matrimonial relationship, wills and succession are among the matters excluded from the application of the Convention (Article 1 (1)). According to the appeal judgment, that rule means that the couns of the Netherlands have jurisdiction because, although the spouses are domiciled in Belgium, they are both Netherlands nationals and when the husband dies his propeny will probably devolve in accordance with the laws of the Netherlands.

But there are two exceptions to that exclusion.

First, under Article 18: Apan from jurisdiction derived from other provisions of this Convention, a court of a contracting State before whom a defendant enters an appearance shall have jurisdiction. This rule shall not apply where appearance was entered solely to contest the jurisdiction, or where another court has exclusive jurisdiction by virtue of Article 16.

Secondly, under Article 24: Application may be made to the courts of a contracting State for such provisional, including protective, measures as may be available under the laws of that State, even if, under this Convention, the courts of another contracting State have jurisdiction as to the substance of the matter.

The Supreme Court of the Netherlands wonders whether, if either of those provisions is applicable, the President of the Rotterdam Court had jurisdiction to rule upon the husband's interlocutory application.

I think it would be useful to examine the last two questions first.

In answer to the questions raised I submit that the Court should rule:

1 Translated from the French