EUPillar NBI BVBA v AG HDI-Gerling Industrie Versicherung and AG Westfalische Provinzial Versicherung - C/15/00018

Summary

The claimant, NBI, exploits a biogas power station. It entered into a contract with a German firm for the installation of the power station. On 11 November 2014, one of the tanks came loose and caused enormous damages. According to a judicial expert, the German firm is exclusively responsible for those damages. In the current proceedings, NBI entered a claim against the two insurance companies of the German firm, HDI and WPV. The insurance policies provide that German law is applicable. NBI seeks 500,000 EUR provisional damages. JURISDICTION In any event, the court has jurisdiction to take provisional, including protective, measures pursuant to Art. 35 Brussels Ibis. It must be noted that the circulation of these judgments is limited by Art. 2)a), §2 Brussels Ibis. That is why the court must also examine whether it has jurisdiction as to the substance of the matter. Moreover, if NBI wants to enforce the court’s judgment in Germany, it has to request a certificate, and on this certificate the court has to provide expressly whether it has jurisdiction on the substance of the case. It is best that the court already examines its jurisdiction now, since filling in this certificate is often left to the court’s clerk or a different judge than the one who took the decision. The court applies the jurisdictional rules applicable to insurance contracts. Art. 13(2) provides that Articles 10, 11 and 12 shall apply to actions brought by the injured party directly against the insurer, where such direct actions are permitted. Belgian law permits such direct actions (cf. Art. 150 Insurance Act), while German law does not. Art. 18 Rome II only applies to extracontractual obligations. In the case at hand, the damage occurred during the performance of the construction contract between the parties. Therefore, the court shall apply Rome I. Rome I does not contain a specific rule for direct actions. The insurance policy and the direct action are closely connected, since the size of the claim is necessarily limited to the rights awarded by the policy to the insured. The direct action forms an exception to the privity of contract because it allows a third party to enforce a direct and personal right, on the basis of the contract, against the debtor of his own debtor. It is therefore appropriate to keep the interest of the insurer in mind and apply the lex contractus of the insurance policy to the direct action of the injured party. Art. 12(1)(b) Rome I provides that disputes related to the performance of the contract are governed by the lex contractus. Art. 9 Rome I should not be applied here. The fact that the Belgian Insurance Act of 4 April 2014 is mandatory, does not mean that the Belgian legislator conferred an overriding mandatory character to its provisions within the meaning of Art. 9 Rome I. Both insurance policies are governed by German law. NBI accepts that German law does not provide for the direct action of the injured party against the insurer. Therefore, the President of the Commercial Court can only take provisional measures in summary proceedings, but does not have jurisdiction over the substance of the case. However, Art. 35 Brussels Ibis should not allow the plaintiff to obtain an injunction in summary proceedings that it would not be able to obtain in the proceedings as to the substance. That would cause a circumvention of the jurisdictional rules. Moreover, even if Belgian law were applicable, the claim does not observe the conditions imposed by the ECJ in Mietz (C-99/96) and Van Uden (C-391/95). The court fails to see how the requested measure is necessary in order to ensure the practical effect of the decision on the substance of the case (Van Uden, para. 45). Furthermore, it has not been shown that the German defendants have sufficient assets in Belgium to ensure the provisional character of the measure (Van Uden, para. 47). The case is dismissed.