EUPillar C-167/08 Draka NK Cables Ltd, AB Sandvik International, VO Sembodja BV and Parc Healthcare International Limited v Omnipol Ltd (First Chamber) [2009] ECR I-03477

Summary

This case on Art 43(1) of Brussels I was referred to the CJEU in proceedings brought by certain creditors of the Central Bank of Iraq (‘CBI’) established in Finland, Sweden, the Netherlands, and Ireland, against another creditor of CBI, Omnipol established in the Czech Republic, regarding a Belgian enforcement order authorising the enforcement of a Dutch judgment concerning Omnipol’s claims against CBI. The applicants and Omnipol were affected by the pro rata distribution of monies belonging to CBI. Omnipol’s title was based on a Dutch court judgment. The enforcement of that judgment was authorised in Belgium under Brussels I. The applicants appealed against the authorisation of enforcement relying on an ‘indirect claim’ under Art 1166 of the Belgian Civil Code, in conjunction with Art 43(1) of Brussels I. The appeal was declared inadmissible on the ground that although the Belgian provision confers on creditors the right to exercise all rights and claims of their debtor, a creditor cannot be regarded as a ‘party’ within the meaning of Art 43(1) of Brussels I. During the appeal in cassation, the referring court noted that although, in the matter of appeals, Brussels I has the same aim as the Brussels Convention, the wording of Art 43(1) of Brussels I departs from the wording of the corresponding provision, ie Art 36, in the Convention. Thus, it asked the CJEU whether, under Art 43(1), a creditor of a debtor may lodge an appeal against a decision on the request for a declaration of enforceability even if he has not formally appeared as a party in the proceedings in which another creditor of that debtor applied for that declaration of enforceability. The CJEU observed that, in considering the systems of the Brussels Convention and Brussels I, Art 43(1) of Brussels I must be compared with the combined wording of Arts 36 and 40 of the Convention. After that comparison, it found that the change in wording to Art 43(1) of Brussels I has not resulted in a substantive change, and so its interpretation on the Brussels Convention relating to enforcement of decisions is still valid for the corresponding provisions of Brussels I. It cited joined Cases 9/77 and 10/77 Bavaria Fluggesellschaft and Germanair and C-432/93 SISRO where it had held that the principle of legal certainty and the objectives of the Brussels Convention require a uniform application of the legal concepts and legal classifications. It also cited C-414/92 Solo Kleinmotoren and C-260/97 Unibank where it had affirmed that the principal objective of the Brussels Convention is providing a simple and rapid enforcement procedure, whilst at the same time giving the party against whom enforcement is sought an opportunity to bring an appeal. Interpreting the enforcement procedure rules strictly, the CJEU already found in 148/84 Deutsche Genossenschaftsbank that Art 36 of the Brussels Convention excludes procedures whereby interested third parties may challenge an enforcement order under domestic law. It thus found that the scope of the right conferred by the Belgian Civil Code on the applicants, who could not be placed on the same footing as the debtor, is irrelevant. It also recalled its finding in Deutsche Genossenschaftsbank that interested third parties may contest execution by means of the procedures available to them under the law of the State in which execution is levied. It considered that the redress procedures available against a declaration of enforceability are expressly made available only to the applicant and the defendant in Recital 18. It ruled that a creditor of a debtor cannot lodge an appeal against a decision on a request for a declaration of enforceability under Art 43(1) of Brussels I if he has not formally appeared as a party in the proceedings in which another creditor of that debtor applied for that declaration of enforceability. This was a straightforward case dealt with the CJEU quickly in 12 months.