Cross-Border Evidence Under Brussels I bis and Beyond: The Dutch Reform of Access to Evidence

This post was contributed by Pauline Ernste & Jeroen van Hezewijk, who are respectively professor of civil law, in particular civil procedural law, and doctoral researcher at the Radboud Business Law Institute (OO&R) of the Radboud University in Nijmegen, the Netherlands. The post is based on a more in-depth analysis published (in Dutch) here.

On 1 January 2025, the Netherlands introduced a significant reform of its law of evidence through the Wet vereenvoudiging en modernisering bewijsrecht. An important innovation is the recodification of the right to inspect specific information, or obtain copies or extracts of that information, in respect of the person that has control of it, long known under Article 843a of the Dutch Code of Civil Procedure (DCCP), into Articles 194–196 DCCP. It aimed at making such access to information easier to use in practice and specifically encourages parties to use it at an early stage, even before proceedings on the merits have been commenced.

While the reform was primarily intended to improve domestic litigation, its implications extend well beyond national borders. In particular, it raises important questions concerning the interaction with EU private international law, most notably the Rome I and Rome II Regulations and, more prominently, the Brussels I bis Regulation.

This post briefly sketches the PIL framework and then focuses on what is arguably the most intriguing issue: whether (Dutch) pre-procedural access to evidence qualifies as a ‘provisional measure’ under Article 35 Brussels I bis.

From Substantive Claim to Procedural Tool?

A key preliminary question is whether the Dutch right to inspect information or obtain copies or extracts thereof should be characterised as substantive law or as evidence/procedural law. This distinction determines whether its availability depends on the lex causae (under Rome I/II) being Dutch law or whether it is always available based on the lex fori.

Under the former Article 843a DCCP, the answer was uncertain. While the provision clearly served evidentiary purposes, it could also be invoked as a stand-alone claim for ‘a variety of purposes’ (per the Dutch Supreme Court), and also in the absence of contemplated litigation. There could therefore be doubt whether it might fall (at least in part) outside the Rome Regulations’ exclusion for ‘evidence and procedure’.

The 2025 reform has largely resolved this ambiguity. The new provisions:

• are systematically located in the law of evidence,
• are expressly framed as tools for information gathering in (potential) civil disputes, and
• are aligned with other preliminary evidentiary measures.

Against this background, the right to inspect information or obtain copies or extracts thereof should now be regarded as evidence law/procedural law, falling within the Rome I/II exclusion. The consequence is that Dutch courts may apply the regime regarding the inspection of information and copies or extracts of that information as part of the lex fori, regardless of the law governing the underlying substantive relationship.

This makes the question of jurisdiction, rather than applicable law, the central issue in cross-border cases.

Access to Documents and Jurisdiction: The Central Role of Brussels I bis

Where the inspection of information or copies or extracts of that information is sought in the context of pending proceedings, the matter is relatively straightforward: the request follows the jurisdiction over the main proceedings under the ordinary rules of Brussels I bis, at least as between the parties to those proceedings (we deal with third parties below).

The more interesting questions arise where access is sought before proceedings on the merits are initiated, as is explicitly possible under Article 196 DCCP.

Two possible routes to jurisdiction can then be identified:

1. Jurisdiction based on the future main proceedings; and
2. Jurisdiction under Article 35 Brussels I bis (in conjunction with national law) for provisional or protective measures.

It is the second route that raises the most delicate conceptual issues.

Is Pre-Procedural Access to Documents a Provisional or Protective Measure?

Article 35 Brussels I bis allows courts to grant provisional or protective measures even where they lack jurisdiction over the substance of the dispute, provided there is a real connecting link between the measure and the territorial jurisdiction of the court (per the CJEU’s judgment in Van Uden).

Whether an order for pre-procedural access to documents falls within this provision is not self-evident.

A restrictive starting point

The case law of the CJEU suggests a traditionally restrictive understanding of provisional measures. In Reichert II and subsequent case law, such measures are described as aiming to preserve a factual or legal situation pending a decision on the merits. Moreover, the Court has shown reluctance to include certain forms of evidence gathering, most notably in St. Paul Dairy, where a request for a preliminary witness examination aimed at assessing litigation prospects was held to fall outside the scope of the predecessor provision to Article 35.

Recital 25 of Brussels I bis also excludes measures ‘which are not of a protective nature’.

At first sight, this might suggest that pre-procedural inspection of documents and providing copies or extracts of that information does not qualify.

A broader reading: access as evidence-preserving measure

The Dutch reform invites a reconsideration of this restrictive approach. We believe that several arguments support the inclusion of pre-procedural inspection of information and providing copies or extracts of that information within Article 35:

First, the Regulation itself contemplates that certain measures aimed at obtaining information may fall within the notion of provisional or protective measures. In particular, Recital 25 refers to ‘protective orders aimed at obtaining information’ under the IP Enforcement Directive. Moreover, the wording of Article 35 itself seems to imply that its scope is not limited to measures with a strictly conservatory character, as it talks about ‘provisional, including protective, measures’ / ‘mesures provisoires ou conservatoires’. This logically implies that not all such measures need to be protective/conservatory; they may also be ‘provisional’.

Second, when it comes to requests for inspection of information, or providing copies or extracts of that information, the purpose is (or can be pleaded to be) always at least in part also to:

• secure the availability of evidence, and
• prevent its loss or destruction.

In this sense, these requests often have a genuinely protective dimension, even if they also serve to prepare a case or to get a better sense of the strength of one’s evidence.

Third, a broader interpretation is consistent with recent developments in EU law, which increasingly emphasise effective access to evidence as a means of addressing information asymmetry (for example in competition damages actions and representative actions). It would greatly improve efficiency, and thereby the sound administration of justice (as referred to by the CJEU in its recent Apple Store Nederland judgment) if such access could be sought directly from the local court where the information resides, rather than having to rely on cross-border taking of evidence.

The ‘real connecting link’ requirement

Even if pre-procedural access is accepted as a provisional measure, jurisdiction under Article 35 remains subject to an important constraint: the existence of a real connecting link between the requested measure and the forum.

In the context of access to documents, such a link may exist where:

• the documents are located in the Netherlands, or
• the addressee (whether a party or a third party) is domiciled there.

This requirement ensures that Article 35 does not become a vehicle for excessive forum shopping in cross-border disclosure. At the same time, it reflects the underlying rationale of Article 35: the local court is often best placed to supervise the taking of evidence within its territory.

Third Parties and the Limits of Article 35

Particular complexity arises where documents are sought not from an opposing party, but from a third party.

From the perspective of the underlying dispute, access to documents requests are accessory. From the perspective of the third party, however, they constitute independent proceedings, potentially imposing significant obligations and Dutch law affords such third parties (procedural and substantive) defence rights (unlike e.g. witnesses).

This dual character makes it difficult to apply Brussels I bis straightforwardly. A cautious approach would treat (vis-a-vis the third party) such requests as autonomous claims, detached from the (current or future) proceedings between the parties to the material dispute, and (therefore) subject to the ordinary jurisdictional rules of Brussels I bis.

This would also imply that, even where the access is sought in anticipation of proceedings on the merits, it should not be deemed a provisional or conservatory measure vis-a-vis the third party (who, after all, will not be a party in that subsequent litigation).

The Expansive Reach of Dutch Jurisdiction

Where Brussels I bis does not apply, Dutch courts rely on national PIL rules, which are notably broad.

In particular, for stand-alone pre-procedural applications for access to documents, Dutch law allows jurisdiction to be based on the applicant’s domicile (forum actoris). This opens the door to far-reaching jurisdictional claims, even where the case has only a limited connection to the Netherlands, and it is not clear whether the legislator intended this.

Under Dutch law (like under EU law), judges are not allowed to apply forum non conveniens. Even where jurisdiction exists, however, courts retain discretion when assessing the request itself. The Dutch regime contains several safeguards, including:

• the requirement of a legitimate interest,
• proportionality considerations,
• protection against abuse of rights, and
• the possibility to refuse access for weighty reasons.

These standards are likely to play a crucial role in cross-border cases. They allow courts to take into account, for example, whether:

• the connection to the Netherlands is tenuous, or
• the requested disclosure would go significantly beyond what is acceptable under the relevant foreign legal system.

Conclusions

The 2025 reform positions the Netherlands as a jurisdiction offering robust tools for pre-procedural access to evidence, with clear implications for cross-border situations.

From a PIL perspective, the most notable question it brings to the fore is the potential qualification of pre-procedural access to documents as a provisional or protective measure under Article 35 Brussels I bis. While not uncontroversial, we conclude that such qualification appears both doctrinally defensible and functionally attractive. However, where the request is addressed to a third party, we deem it prudent to treat it (vis-a-vis that third party) as a stand-alone matter and not as a provisional measure.

At the same time, the potentially unintended consequences of the reform for third country addressees of information requests underscores the need to balance efficiency in evidence gathering with restraint in cross-border application of national regimes that may clash with foreign sensibilities.