Case number and/or case name
Gerechtshof ‘s-Hertogenbosch, 200.215.789_01
Appeal against an interim judgment on EAPO issued by the District Court Zeeland-West-Brabant, local division Middelburg (case C/02/328354/KG RK 17-312)
A Belgian firm sold three Maserati’s (restored cars project) to a buyer (director of a company) in the Netherlands for EUR 300.000. Due to an alleged failure of the seller to perform, the buyer submitted a claim to the District Court Zeeland-West-Brabant, local division Middelburg for EUR 186.000 for an EAPO to attach the sellers’ bank accounts in the Netherlands.
The seller based on Art. 33(1) and Art. 36 EAPO sought to lift the pre-judgment attachment arguing that: (1) the court that issued the EAPO did not have jurisdiction (Art. 6 EAPO); (2), there was not urgent need for a protective measure since there is no real risk that, without the measure, the subsequent enforcement of the claim against the company would be made impossible or substantially more difficult (Art 7(1) EAPO); (3) the buyer did not provide sufficient evidence to satisfy the court that he is likely to succeed on the substance of this claim (Art. 7(2) EAPO); and (4) he should have been required the buyer to provide security for an amount sufficiently high to prevent abuse (Art 12(1) EAPO). An appeal was lodge in accordance with Art. 37 EAPO using the appeal form.
The court proceeded first with assessing its jurisdiction. In assessing jurisdiction, the court refers to the CJEU case law (CJEU C-464/01 Gruber 20 January 2005 (ECLI:EU:C:2005:32); CJEU C-102/14 Gazdasági Versenyhivatal c. Siemens AG Österreich 28 July 2016 (ECLI:EU:C:2016:737); CJEU C 180/06 Ilsinger 14 May 2009 (ECLI:EU:C:2009:303); CJEU joint cases C 585/08 and C 144/09 Pammer v Hotel Alpenhof 7 december 2010 (ECLI:EU:C:2010:740); CJEU C 190/11 Mühlleitner 6 September 2013 (ECLI:EU:C:2012:542); CJEU C-249/16 Kareda c. Benkö 15 June 2017 (ECLI:EU:C:2017:472); CJEU C-533/07 Falco Privatstiftung c Weller-Lindhorst 23 April 2009 (ECLI:EU:C:2009:257); CJEU C-47/14 Holterman Ferho Exploitatie 10 September 2015 (ECLI:EU:C:2015:574); CJEU C- 266/85 Shenavai/Kreischer 15 Januari 1987 (ECLI:EU:C:1987:11); CJEU C-420/97 Leathertex/Bodetex 5 October 1999 (ECLI:EU:C:1999:483); CJEU C-548/12 Brogsitter 13 March 2014 (ECLI:EU:C:2014:148)). In applying this case law, the court of appeal comes to the conclusion that the court of first instance lacked jurisdiction, since the buyer, given the circumstances of the case (buyer, messages exchange via whatsapp, transport, place of delivery of the pieces that was different than his private address stipulated in the contract, ), is not deemed to be a consumer within the meaning of the Brussels I bis Regulation (Art. 17(1)(c) and Art.18), but a business entity that bought the Maseraties to restore them, to drive them, and eventually selling them. Then, the court proceeds with assessing jurisdiction based on Article 7(1)(a) – (b) Brussels I bis. In this process, the court analyses the place of delivery based on the provisions of the Rome I (Art 4(1)(a)), Art 2(1)(a) and Art 31(b) CISG and Belgian law. Additionally, according to Belgian law (Art 1606 Belgian Procedural Law), delivery has taken place in Belgium, so jurisdiction cannot be based on the place of delivery according to Art. 7(1) Brussels I-bis. Superfluously, the court also considers that a substantive reason for dismissal is present, since the shortcoming or wrongful act are not proven conclusively under Belgian law. The prejudgment EAPO attachment is revoked as the conditions for its issuance were not met (Art. 6(1) in conj. Art 33(1)(a) and Art. 7(2) EAPO).