PIL instrument(s)

Case number and/or case name

Oberbank v. Group C AG - 132/2011 - Comm. Eupen, 19 September 2013

Details of the court

Belgium, First Instance

Articles referred to by the court

Date of the judgement

18 September 2013

Appeal history

CJEU's case law cited by the court

Summary

The defendant was an important supplier of the Lederfabrik Vogel. The claimant, Oberbank, was Lederfabrik Vogel’s principal financier and in 2007 paid 90% of the invoices issued by the defendant by discounted bills of exchange, for a total amount of 4,850,000 EUR. In 2008 this was 3,150,000 EUR. When the financial crisis hit in 2009, the claimant wanted to limit its exposure and granted a “supplier’s discount loan” with a maximum amount of 1,300,000 EUR. In 2009, the discounted amount drawn by the defendant was only 820,000 EUR. It seems that the defendant and Lederfabrik Vogel found other ways between them to settle the invoices and that the defendant granted new terms of payment. However, out of 820,000 EUR, Oberbank is left with an amount of about 300,000 EUR that was never reimbursed. Lederfabrik Vogel was declared bankrupt on 30 September 2010. Pursuant to Art. 9 of the Belgian Coordinated Laws of 31 December 1955 on the Bill of Exchange and the Promissory Note, the holder of a bill of exchange has a right of recourse against the drawer. The defendant objects that the bank ignored its obligations as a credit provider, by maintaining the discount loan of Lederfabrik Vogel, when the latter was already in financial difficulty. The parties agree that the Rome II Regulation applies to their case. Art. 4 of this Regulation provides that the law applicable to a non-contractual obligation arising out of a tort/delict shall be the law of the country in which the damage occurs […], except “where it is clear from all the circumstances that the tort/delict is manifestly more closely connected with another country”. It is undisputed that the damage occurred in Belgium. The payments were made by the claimant on the Belgian bank account of the defendant. Therefore, the applicable law is Belgian law. The claimant had already relied on Belgian law in the first briefs it submitted to the court. Moreover, the parties note that Belgian law and Austrian law actually coincide on the question of the liability of the credit provider.