EUPillar Pierre Cavenaile and Koenraad Tanghe, in their capacity as receivers of SA Curver Lawn Comfort v. Martin Uijen, in his capacity as receiver of the SPRL Euro United Plastics BV - RG 12/2540/A

Summary

FACTS AND PROCEDURE Before they entered into liquidation, SPRL Euro and SA Curver were sister companies that belonged to the same industrial group which produced and sold garden furniture. The moulds used for production were used by SA Curver but owned by SPRL Euro. In 1999 and 2000 respectively, SPRL Euro and SA Curver were declared insolvent by the Commercial Court of Liège. The receivers of SA Curver then entered into negotiations with third parties in order to sell the business of the company. For this purpose, SPRL Euro agreed to sell the moulds to SA Curver. The negotiations with the third party eventually led to nothing – according to both SPRL Euro and SA Curver, the third party wrongfully terminated the negotiations. SA Curver then sold the moulds for a lower price to another buyer. SPRL Euro and SA Curver had entered into a sales agreement for the moulds which provided that in such circumstances, SA Curver should endeavor to obtain damages from that third party and that it should transfer those damages to SPRL Euro. SPRL Euro then sued SA Curver before the District Court of Amsterdam in The Netherlands. On 8 December 2004, the District Court ordered SA Curver to pay 496,240.83 EUR (plus interests) to SPRL Euro. The District Court also added two injunctions: SA Curver had to do everything in its power to obtain damages from the third party, and keep SPRL Euro informed of the steps it had taken within 14 days – because until that moment, SA Curver hadn’t pursued its claim. These injunctions were subject to a penalty payment of 500 EUR per day with a maximum of 50,000 EUR. One week later, on 15 December 2004, SPRL Euro invited SA Curver in writing to execute the judgment by paying it the sum of 661,366.61 EUR. Finally, on 7 March 2005, SPRL Euro filed an application for a declaration of enforceability. On the same day, SPRL Curver transferred the sum of 661,253.61 EUR. The exequatur was granted on 13 April 2005 and confirmed on 9 June 2010 by the Court of First Instance of Liège and again on appeal on 10 November 2011 by the Liège Court of Appeal, in third party proceedings initiated by SA Curver. On 23 April 2012, SPRL Euro sued SA Curver in order to pay 54,561.56 EUR, i.e. the penalty payment plus the legal costs. SA Curver argues that it complied with the injunctions ordered by the District Court of Amsterdam. In the alternative, SA Curver objects that the procedure initiated by SPRL Euro is abusive. DECISION OF THE COURT OF FIRST INSTANCE OF 12 NOVEMBER 2012 The Enforcement Judge of the Liège Court of First Instance is in doubt about two things. First of all, the court cites Art. 47(3) Brussels I. Since SA Curver lodged an appeal against the declaration of enforceability of 13 April 2005, which led to the judgments of 9 June 2010 and 10 November 2011, the Court wonders whether the time period of 14 days in fact started only on 23 April 2012, i.e. the day SA Curver was notified of the final judgment. Art. 49 Brussels I stipulates “A foreign judgment which orders a periodic payment by way of a penalty shall be enforceable in the Member State in which enforcement is sought only if the amount of the payment has been finally determined by the courts of the Member State of origin.” This would entail that SPRL Euro first has to obtain the final determination of the penalty payment by the District Court of Amsterdam. The Enforcement Judge of the Court of First Instance of Liège re-opens the debates in order to allow the parties to submit additional evidence and present their point of view on these two questions. DECISION OF THE COURT OF FIRST INSTANCE OF 11 MARCH 2013 The parties admit SPRL Euro should first of all obtain the determination of the penalty payment by the District Court of Amsterdam. The Enforcement Judge annuls the order for payment that SPRL Euro had sent to SA Curver on 23 April 2012. The Enforcement Judge does not grant SA Curver’s counterclaim for abusive and vexatious proceedings.