EUPillar BIV v BV B. and K.H. - AR/09/3723 - KG Kh. Hasselt, 30 April 2010

Summary

(Decision by the President of the Commercial Court of Hasselt) On 28 October 2005, the president of the Commercial Court of Hasselt issued an injunction against the BV B. and Mr. K. The court found that B. and K. exercised the activity of real estate agent without complying with the European Directive (EEC) 89/48, contrary to Art. 3 of the Belgian Framework Law of 1 March 1976 on Real Estate Agency. B. and K. were prohibited from exercising the activity of real estate agent in Belgium subject to a penalty payment of 3,700 EUR per breach. Now, the applicant, B.I.V. (Belgian Institute for Real estate agents) claims that B. and K. do not observe that injunction. The applicant seeks to obtain an declaratory injunction that determines the amount of the penalty payments which are due. The applicant counts 7 breaches which give it a right to 25,900 EUR. The defendants contest the jurisdiction of the court and claim that is it only the “beslagrechter” (enforcement judge, judge of attachments) is competent. The performance of the penalty payments shall take place in The Netherlands. Art. 49 Brussels I Regulation stipulates that “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.” The applicant seeks declaratory relief. The international jurisdiction of the court is determined by the Brussels I Regulation. The internal jurisdiction of the court is not determined by the Brussels I Regulation. The court applies Art. 1385quinquies of the Belgian Judicial Code, which implements the Benelux Treaty on the Uniform Law on Penalty Payments. The judge who pronounced the penalty payment is not competent to order its execution. That task befalls to the enforcement judge or judge of attachments. The Court transfers the case to the enforcement judge of the Court of First Instance of Hasselt. SHORT CRITIQUE The international jurisdiction of the court is determined by Art. 49 Brussels I. This is a correct application of the Brussels I Regulation. The second part of the decision, on the internal jurisdiction of the court, leads to discussion in the case law and among legal scholars.