PIL instrument(s)

Case number and/or case name

Joined cases C.09.0176.N and C.09.0479.N - Goebel & Kuhl GmbH v Tops Foods NV; Tops Foods NV v. Goebel & Kuhl GmbH

Details of the court

Belgium, Third Instance

Articles referred to by the court

Date of the judgement

28 April 2010

Appeal history

CJEU's case law cited by the court

Summary

Goebel & Kuhl sought the enforcement of a decision of the Landgericht in Koblenz, Germany of 6 March 2006. The enforcement was granted by the Rechtbank van eerste aanleg (Court of First Instance) of Turnhout on 22 November 2006. On third-party appeal against this declaration of enforceability, Tops Foods argued that the order of the Landsgericht of Koblenz was manifestly contrary to European law, in particular the Evidence Regulation (No. 1206/2001). Art. 17(2) of the Evidence Regulation provides that “direct taking of evidence may only take place if it can be performed on a voluntary basis without the need for coercive measures”. The German court had ordered a due diligence to shed light over the pending case. Tops Foods – a company incorporated and seated in Belgium – did not voluntarily hand over the accounting documents and can only be forced to do so by coercive measures. The German court had imposed a periodic penalty payment of 500 EUR per day. Tops Foods also argues that when the German court orders the direct taking of evidence in another Member State, this violates the general principle of sovereignty of States and goes against international public policy. The Court of First Instance of Turnhout followed Tops Foods’ argument and rescinded its earlier declaration of enforceability on 6 March 2008. Goebel & Kuhl appealed to the Court of Appeal of Antwerp, which granted enforcement of the German court order. Goebel & Kuhl also appealed directly to the Court of Cassation against the decision of the Court of First Instance of Turnhout of 6 March 2008, while Tops Foods filed an appeal against the judgment of the Court of Appeal of Antwerp on the basis of Arts. 43(1) and 44 Brussels I Regulation. The Court of Cassation joins both appeals. The Court of Cassation decides that by checking the order of the Landsgericht of Koblenz against European community law and refusing its recognition and enforcement partly on this basis, the appealed decision violates Art. 36 of the Brussels I Regulation, which stipulates that “under no circumstances may a foreign judgment be reviewed as to its substance.”