EUPillar unknown - 2005/AR/2429 - Antwerpen, 7 December 2005

Summary

FACTS OF THE CASE Until mid-2001, X was statutory director of Y, a company incorporated in The Netherlands. X entered into an employment contract with Y, which was terminated on 1 September 2001. Until May 2001, the shares of Y were held in full by another Dutch company, Koninklijke W. In May 2001, the appellant acquired the shares in Y from W. After the acquisition, X is asked by the appellant to fulfill a few consultancy projects on a freelance basis. X was never paid for his work as a consultant. X then sued the appellant in payment of 20,901.83 EUR of outstanding fees for the months September 2001, October 2001, November 2001, January 2002, February 2002 and March 2002. The appellant contests the jurisdiction of the court, and also introduces a counterclaim for damages in the amount of 1,600,000 EUR. This is the amount of liquidated damages claimed by a third company , Z, which was one of Y’s clients. The appellant alleges that X wrongfully kept the existence of this claim from him. DECISION OF THE COURT The first judge accepted its jurisdiction and granted X’s claim. As to the appellant’s counterclaim, the first judge decided that he lacked jurisdiction insofar as the claim is based on Art. 1382 Belgian Civil Code, i.e. the principle of extra-contractual liability. As regards the claim based on X’s contractual liability, the first judge decided that he has jurisdiction, but dismissed the claim on the merits. On appeal, the appellant no longer contests the jurisdiction of the court over X’s claim. The Court confirms the decision of the first judge on the merits and orders the appellant to pay X’s consultancy fees. As to the appellant’s counterclaim, based on X’s extra-contractual liability, the Court of Appeal has to examine its jurisdiction. Art. 6(3) Brussels I provides that “A person domiciled in a Member State may also be sued on a counter-claim arising from the same contract or facts on which the original claim was based, in the court in which the original claim is pending.” The Court of Appeal follows X’s argument that the appellant’s counterclaim does not “arise from the same contract or facts on which the original claim was based”. The appellant’s claim is based on Art. 1382 Belgian Civil Code and on X’s breach of his duty to inform. It is not based on the consultancy agreement. However, in matters relating to tort, delict or quasi-delict, the courts for the place where the harmful event occurred or may occur too have jurisdiction. Since the appellant claims to have suffered damages at its branch in Belgium, the appellant has the right to have both claims heard by the same court on the basis of that autonomous jurisdictional base. The Court dismisses the appellant’s counterclaim on the merits. SHORT CRIQUE This is the only example of a case we have where Art. 6(3) Brussels I was applied. The court applied it correctly.