EUPillar Joined cases 2010/KR/42 and 2010/KR/59 - BVBA Multiplan Design & Build, BVBA Multiplan Design & Build I and BVBA Multiplan Design & Build II v. ING België NV; NV Cit Blaton and CBL SA v ING België NV

Summary

On 12 November 2009, the first appellant sued the defendant (ING) in immediate payment of two bank guarantees, subject to a penalty payment for every hour of delay. The NV CIT Blaton and CBL SA (a company incorporated in Luxembourg) voluntarily joined the proceedings, as well as the second and third appellants. CIT Blaton and CBL instituted a “counterclaim” to prevent ING from paying out the bank guarantees until there was a decision on the substance of the matter. ING contested the jurisdiction of the court seised. The first judge accepted its jurisdiction, but dismissed the appellants’ claim. On appeal, the appellants seek to rescind the decision of the first judge. CIT Blaton and CBL also appealed and repeat their request for an injunction against ING. CIT Blaton and CBL also sued the appellants and ING on 24 November 2009 in Luxembourg. This procedure is still pending. The Court of Appeal examines the objection as to jurisdiction raised by ING. The letters of bank guarantee provide expressly that they are to be performed in Luxembourg, that Luxembourg law is applicable and that the courts of the Grand Duchy of Luxembourg have jurisdiction over disputes arising from these letters. Pursuant to the Brussels I Regulation, ING can rely on that choice of court clause. The bank guarantee issued by ING arises out of a commitment by unilateral will. The choice of court clause is an integral part of this commitment, as much as the obligation to pay itself. The beneficiaries of the bank guarantee therefore have to accept it. By relying on the bank guarantee for their claim, the appellants accept the letter as a whole, including the choice of court clause. The appellants invoke Art. 31 Brussels I. The application to prevent ING from paying out the bank guarantee awaiting a decision on the substance of the case, is such a provisional and protective measure. The appellants’ claim, however, calls for the integral performance of ING’s obligation under the letters of bank guarantee. Interim payment of a contractual consideration does not constitute a provisional measure within the meaning of Art. 31 Brussels I unless, first, repayment to the defendant of the sum awarded is guaranteed if the plaintiff is unsuccessful as regards the substance of his claim and, second, the measure sought relates only to specific assets of the defendant located or to be located within the confines of the territorial jurisdiction of the court to which application is made (cf. C-391/95, Van Uden Maritime). In the case at hand, the appellants do not merely seek an interim payment but the integral performance of the contractual consideration, and they do not provide any guarantee of repayment. Moreover, the granting of provisional or protective measures is conditional on, inter alia, the existence of a real connecting link between the subject-matter of the measures sought and the territorial jurisdiction of the Contracting State of the court before which those measures are sought (cf. Van Uden). The claim of the appellants is for the immediate payment of a sum in Luxembourg in favour of two companies incorporated in Luxembourg which have their seat in Luxembourg, both at the time when the bank guarantees were issued and the proceedings were instituted. The Belgian courts do not have jurisdiction over the appellants’ claim. As to the claim of CIT Blaton and CBL, the Court refers to the considerations above. Even if the measure sought by CIT Blaton and CBL is a provisional measure within the meaning of Art. 31 Brussels I – contrary to the appellants’ claim -, there is no real connecting link with the territorial jurisdiction of Belgium. The Court of Appeal dismisses the case for lack of jurisdiction.