PIL instrument(s)

Case number and/or case name

Hombergh Holdings BV v. EMC Medical Instruments NV and K.K - KG Turnhout, 17 February 2012

Details of the court

Belgium, First Instance

Articles referred to by the court

Date of the judgement

16 February 2012

Appeal history

CJEU's case law cited by the court

Summary

(Decision of the President of the Commercial Court of Turnhout in summary proceedings) The applicant accuses the defendant of defamation which goes against the Begian Law of 6 April 2010 on Market Practices and Consumer Protection. The applicant seeks an injunction which would prohibit the defendant from making any kind of statement regarding the applicant and its board members, subject to the payment of a penalty of 25,000 EUR for every breach. The defendant contests the jurisdiction of the court, claiming that the courts of Breda in The Netherlands have exclusive jurisdiction on the basis of Art. 5(3) Brussels I Regulation. However, the President of the Commercial Court considers that the grounds of special jurisdiction included in Article 5 only offer an additional possibility apart from the general rule of Art. 2 Brussels I Regulation, which grants jurisdiction to the courts of the Member State where the defendant is domiciled. The choice is the claimant’s and not the defendant’s. The claimant had the right to sue the defendant before the Belgian courts. Initially, the defendant also argued the action was related to a claim between the same parties which was pending before the “Voorzieningenrechter” at the court of Breda and should be joined to the Dutch proceedings. It appears that the procedure in Breda came to an end when a judgment was handed down on 13 December 2011. For the sake of completeness: even if the action were still pending and both actions were related, the claim in The Netherlands should have been referred to the Belgian court which is the court first seised within the meaning of Art. 29 Brussels I Regulation. SHORT CRITIQUE The President of the Court correctly applies the Brussels I Regulation. It is surprising though that the court refers to Art. 29, which is concerned with exclusive jurisdiction, while it was stated previously that in this case the jurisdiction of the court is not exclusive, but the result of a choice made by the claimant. The court actually meant to apply Art. 28.