EUPillar NV D. v. NV M. - 2009/AR/2316

Summary

Appeal proceedings initiated on 2009-08-11 Appeal against decision of the Hasselt Commercial Court, 2009-06-26 (not in database) Facts: On 27 February 2009, the defendant’s Danish lawyer sent a letter to A., the distributor of the appellant’s products in Denmark. In this letter, the lawyer informed A. about a judgment of the Court of Appeal of Liège of 12 June 2008 in a case between the appellant and the defendant. The lawyer stated that the appellant took advantage of the defendant’s trade secrets and implored A. to cease all purchases and sales of the products concerned. This letter was sent on the defendant’s instructions. The appellant argues that the defendant used an unfair trading practice by divulging the judgment of 12 June 2008 to one of the claimant’s clients. The first judge found he had jurisdiction over the case, but applied Danish law since the facts of the case took place in Denmark. On appeal, the appellant argues that the Belgian Law on market practices and the protection of consumers is applicable. DECISION OF THE COURT The letter in question was sent on 27 February 2009, after the date of application of the Rome II Regulation of 11 January 2009. Art. 6(2) Rome II provides that where an act of unfair competition affects exclusively the interests of a specific competitor, as is the case here, the general rule of Art. 4 shall apply. Art. 4(2) specifies that where the person claimed to be liable and the person sustaining damage both have their habitual residence in the same country at the time when the damage occurs, the law of that country shall apply. In this case, the parties are both habitually resident in Belgium and Belgian law is applicable. The defendant relies on Art. 4(3) to argue that it is clear from all the circumstances of the case that the delict is manifestly more closely connected with Denmark and that Danish law should apply. However, the Court decides that even if the letter was sent by the defendant’s Danish lawyer, he did so on the instructions of his Belgian client. The letter is therefore factually sent by the defendant. The injunction sought by the appellant is addressed to the defendant, and will have to be executed in Belgium. In conclusion, the case will be assessed under the relevant provisions of the Belgian Law on Market Practices and Consumer Protection The Court grants the claim for an injunction brought by the appellant. The Court correctly applies the Rome II Regulation.