EUPillar C-523/14 Aannemingsbedrijf Aertssen NV and Aertssen Terrassements SA v VSB Machineverhuur BV and Others (Third Chamber)

Summary

This case on Arts 1, 27 and 30 was referred to the CJEU in proceedings between the Aertssen companies (incorporated under Belgian law), and two companies (incorporated under Netherlands law) and Mr van Sommeren concerning an allegation of fraudulent conduct against the defendants. The Aertssen companies lodged in Belgium a complaint concerned allegations of fraud seeking to join to criminal proceedings a civil action against a company (incorporated under Netherlands law) and its subsidiaries including the defendants for the loss they suffered as a result of the fraud. The Aertssen companies also submitted in the Netherlands two civil applications for authorisation to serve an attachment order on VSB and others and the second one was granted subject to the condition of initiating the main proceedings. They accordingly brought in the Netherlands before the referring court a substantive action seeking the liability of the defendants and the provisional payment for their loss. The Aertssen companies nonetheless argued that the Dutch Court had no jurisdiction under Art 27(2) of Brussels I, and in the alternative, it should stay proceedings under Art 28. The defendants contend that the Belgian complaint was essentially a criminal matter not falling within the scope of Brussels I and that the complaint and the action in the Netherlands did not involve the same cause of action. The referring court asked some questions to the CJEU. On the first question on Art 1, citing C-172/91 Sonntag the CJEU observed that, while the complaint’s aim is to set in motion a criminal prosecution and while the investigation undertaken by the Belgian court is criminal in nature, the fact remains that its purpose is also to resolve a dispute between private persons concerning compensation for harm which one of those persons considers it has suffered as a result of the fraudulent conduct of others. It found that the legal relationship between the parties is ‘a private law relationship’ covered by the ‘concept of civil and commercial matters’ in Brussels I (by analogy C-406/09 Realchemie Nederland, para 41). Citing 120/79 Cavel, it also noted that it is apparent from Art 5(4) that Brussels I’s scope extends to an action seeking compensation which is ancillary to criminal proceedings, which, since they pertain to criminal matters, are otherwise excluded from it. It held that the action is covered by Art 1(1). On the second question on Art 27(1), citing C-406/92 Tatry re ‘the same parties’, it observed that the fact that the parties to the civil action do not have the power to undertake a criminal prosecution cannot alter the fact that those parties are the same parties as the applicants and defendants to the action brought before the referring court, in so far as the latter are also referred to in the complaint seeking to join a civil action to proceedings in Belgium. Citing C-39/02 Mærsk re ‘the cause’ of action, it observed that in the two parallel sets of proceedings, it is a common feature that the Aertssen companies consider that they suffered harm as a result of fraudulent acts and it is not inconceivable that those proceedings have the same cause. Citing C-111/01 Gantner, 144/86 Gubisch and C-452/12 Nipponkoa re ‘the object’ of an action, it observed that the Aertssen companies seek compensation for the harm suffered by them. It thus found that, without prejudice to the determination to be made by the referring court all the criteria in Art 27 are satisfied. On the third question re the determination of the time when the magistrate is deemed to be seised under Art 30, it found that where the complaint does need not, under the applicable national law, be served the time which must be chosen for the purposes of holding that magistrate to be seised is the time when that complaint was lodged. This was an uncontroversial decision dealt with timeously by the CJEU.