1. Since 10th January 2015, the new Brussels I bis Regulation (1215/2012) applies on all new cases brought before Court after this date. Claims and cases already pending on this date, are not affected.
2. Brussels I bis is more or less an update of the Brussel I Regulation (44/2001) and will therefore sound very familiar to the experienced cross-border litigator
3. The Italian and Belgian ‘torpedo’s’ are tackled as the Court appointed by a forum clause will have priority to state whether or not it has the necessary competence. The Belgian and Italian torpedo’s were known tactics to slow down the whole proceedings, as the Courts in both countries only rule concerning their competence at the end (often after several years). Together with the rule that other Courts had to await the ruling of the Court where the claim was first brought, one could slow down proceedings by bringing a claim before the Italian or Belgian Courts (notwithstanding a forum clause f.e.)
4. Foreign judgments no longer need an ‘exequatur‘ (domestication) in the Member State where one wants to execute this jugdment
5. The Brussels I bis Regulation will also apply if 2 parties are both from outside a Member State but appoint a Court of a Member State in their forum clause
David Diris – Belgian lawyer – Kocks & Partners – Brussels
Judgement of the European Court of Justice – Case: C-9/12 (Corman-Collins SA v. La Maison du Whisky SA)
Interpretation of Article 2 und Article 5 (1) (a) and (b) of Council Regulation (EC) No 44/2001 (‘Regulation No 44/2001‘)
Summary of facts:
The Belgium based Corman-Collins SA (‘Corman-Collins‘) had a commercial relationship with La Maison du Whisky SA (‘La Maison du Whisky‘), established in France. The contract consisted of Corman-Collins‘ purchase of whisky from La Maison du Whisky and the resale of the beverages in Belgium. After La Maison du Whisky unilaterally ended the commercial relationship, Corman-Collins sued for payment of compensation in lieu of notice and additional compensation under the Law of 27 July 1961 on Unilateral Termination of Exclusive Distribution Agreements of Indefinite Duration (‘Belgian Law of 27 July 1961‘).
1. Jurisdiction: Is Article 2 of Regulation No 44/2001 a precluding rule of jurisdiction in regard to Article 4 of the Belgian Law of 27 July 1961?
2. Interpretation: Does either Article 5 (1)(a) or (b) of Regulation No 44/2001 cover a distribution agreement?
Ruling of the Court:
1. Article 2 of Regulation No 44/2001 must be interpreted as follows: Is the defendant domiciled in a different Member State than the court, it precludes the application of national rules of jurisdiction such as Article 4 of the Belgian Law of 27 July 1961.
2. Article 5 (1) (b) of Regulation No 44/2001 relating to the supply of services is applicable to the situation in which a plaintiff established in one Member State has an exclusive distribution agreement with the defendant established in another Member State. A further criterion for the applicability is that the distribution agreement contains specific terms, binding the parties in matter of the distribution by the distributor of goods sold by the grantor.
Although at first hand, it looks nothing has changed (the competent Court will still be the Belgian Court, albeit through another reasoning), the interesting question lies deeper. The case-law of the highest Court in Belgium states that a Court does not have to examine the facts to solve the question of its jurisdiction, but can base its ruling on the words of the writ. In fact, one only had to write in the writ that there is/was an exclusive distribution agreement, and the Belgian Court would accept its jurisdiction on basis of art. 4 of the Belgian Law of 27 July 1961. The European Court now forces the Belgian Court to investigate whether art. 5 (1) (b) Regulation No 44/2001 apply by looking into the stipulations of the agreement… which is part of the facts. Does this mean that the Belgian Courts will be forced to investigate the facts to solve the question of their jurisdiction?