EUPillar P. v. SA B1 - 05/7823/A - Antwerpen, 20 March 2007

Summary

The case relates to consumer credit granted by a Luxembourg bank to a Belgian consumer. The first judge had declined its jurisdiction on the basis of Art. 15(1)(c) and 16(1) Brussels I Regulation. The consumer appealed against this judgment. The total value of the claim of the consumer is 375,000 EUR plus interests and costs, i.e. a total of 403,576.62 EUR. The respondent made a request for a preliminary reference to the European Court of Justice. The Court of Appeal decides that it is not able to grant that request. The Brussels I Regulation was adopted to implement Arts. 61, 65 and 67 of Title IV of the EC Treaty (Visas, asylum, immigration and other policies related to free movement of persons). Pursuant to Art. 68 EC Treaty, where a question on the interpretation of this title or on the validity or interpretation of acts of the institutions of the Community based on this title is raised in a pending case, only a court or a tribunal of a Member State against whose decisions there is no judicial remedy under national law may request the Court of Justice to give a ruling thereon. The decisions of the Court of Appeal can be appealed against before the Supreme Court. Therefore, the Court of Appeal does not have the power to refer questions for preliminary ruling. The Brussels I Regulation entered into force on 1 March 2002 (cf. Art. 76). The original claim was filed on 21 September 2004, so that Brussels I is applicable (cf. Art. 66(1)). Jurisdiction over consumer contracts is dealt with in Section 4 of Brussels I (Arts. 15-17). These provisions lay down an exception to the general rule of Arts. 2-4. In order to bring his claim before the Belgian courts on the basis of Art. 16(1), the appellant must establish that the requirements of Art. 15 are fulfilled, more precisely, in this case, Art. 15(1)(c). There are four cumulative conditions. There has to be a contract. This condition is clearly fulfilled. The appellant entered into a loan agreement with the respondent’s legal predecessor. It appears from the facts of the case that this loan agreement was assigned to the respondent. The contract has to concluded by a consumer for a purpose which can be regarded as being outside his trade or profession. This is also the case, since the appellant is retired. This is not changed by the fact that the appellant is an “experienced speculator”, as alleged by the respondent. The contract has been concluded with a person who pursues commercial or professional activities in the Member State of the consumer's domicile or, by any means, directs such activities to that Member State or to several States including that Member State, and the contract falls within the scope of such activities. This condition has not been fulfilled. The appellant does not show that the respondent directed its activities at the Belgian market. The agreement between the appellant and the respondent was brokered by an independent third party, O., an asset manager. The acts of the asset manager cannot be attributed to the respondent. The correspondence between the parties isn’t sufficient evidence. This correspondence was exchanged when the parties already had a credit relationship. The fact that the respondent’s website is accessible in Belgium does not show that it directed its activities at Belgian clients either. The Belgian courts lack jurisdiction, only the courts of Luxembourg have jurisdiction. Short critique Before the adoption of the Lisbon Treaty, Art. 68 EC Treaty provided that only courts of last instance could make preliminary references on questions of immigration, asylum and free movement of persons. Art. 267 TFEU allows preliminary references from all courts.