EUPillar SA A.M.A. v. B. S. - 2012/RG/1115

Summary

The appellant, SA A.M.A., organises raffles and lotteries. Tickets are allocated randomly to clients, who have to fill out an entry form and send it back within the specified time to take part in the prize draw. They are assigned a number, and if it matches the winning number, they take home the main prize which will be sent to them within 90 days. On 15 June 2009, the respondent, Mrs. S., seised the Tribunal de Grande Instance of Regensburg, Germany. SA A.M.A. paid Mrs. B. S. 6,000 EUR by way of settlement. However, Mrs. S. then claims an additional sum of 1,135,600 EUR which is an accumulation of prize money gained from the promotional offers of SA A.M.A. According to S.A. A.M.A., Mrs. S.’s claim is wrongful and it has sustained damage because of it (cf. Art. 1382 Belgian Civil Code). On 10 March 2010 SA A.M.A. sued Mrs. S. before the Tribunal de première instance of Tournai, Belgium, seeking 15,000 EUR in damages. Mrs. S. contested the jurisdiction of the court, and the first judge duly declined its jurisdiction. DECISION OF THE COURT The Court of Appeal also examines the jurisdiction of the Belgian courts. The main point of discussion is whether Art. 5(1) Brussels I applies, as sustained by the respondent, or Art. 5(3) Brussels I, as claimed by the appellant. The parties also do not agree on the place of performance of the obligation in question and the place where the damage occurred. First , the Court refers to Engler and decides that since there was no contract because the consumer did not have to by any goods, Art. 15 does not apply. Art. 5(1) does apply because it does not require the conclusion of a contract as such, but only establishment of a legal obligation freely consented to by one person towards another and on which the claimant’s action is based. The Court of Appeal decides that, while the relationship between the parties is contractual in nature within the meaning of Art. 5(1) of the Regulation, the appellant’s claim is not based on that contractual relationship. SA A.M.A. alleges that it sustained damages because Mrs. S. sent a letter on 21 January 2010 claiming a sum of 1,153,600 EUR. The parties had reached a settlement. Mrs. S. would renounce to all claims and judicial proceedings if SA A.M.A. were to pay her 6,000 EUR before 31 January 2010, which it did. SA A.M.A.’s claim is really a claim for damages caused by frivolous and vexatious proceedings. This is a matter relating to tort within the meaning of Art. 5(3) Brussels I. Therefore, the court for the place where the harmful event occurred has jurisdiction. SA A.M.A. did not respond to Mrs. S’s letter, but introduced the present proceedings on 10 March 2010. That letter could not, in and of itself, cause damages. Only the legal proceedings which were instituted by Mrs. S. in Regensburg on 31 March 2010 could have done so. The German court stayed the proceedings in application of Art. 28(1) Brussels I. The appellant received Mrs. S.’s letter at this headquarters in Mouscron in Belgium. It claims that the mere receipt of the letter also caused damages, in the form of the “time lost and expenses incurred to respond to the illegitimate claims of the respondent by introducing the present proceedings”. Nevertheless, the Court of Appeal rules that the appellant had a choice: it could have sent an answer to the registered letter, or presented its defence in the proceedings in Germany. The current proceedings are not a direct consequence attributable to the letter sent by the respondent. The harmful event occurred in Germany. Therefore, the Belgian courts lack jurisdiction. Short Critique: The Court could and should have applied C-548/12 (Brogsitter). The extra-contractual claim for vexatious legal proceedings is closely linked with the settlement agreement - a contract - between the parties.