EUPillar Draka NK Cables LTD, AB Sandvik International, VO Sembodja BV and Parc Healthcare International Limited v. Omnipol LTD - C.06.0409.N

Summary

The procedure is about the proportionate distribution of money belonging to the Central Bank of Iraq (CBI). The applicants seek to prevent the enforcement of a judgment of the Court of Amsterdam of 11 December 2003 which accorded almost half of the money belonging to the CBI to Omnipol Ltd, the defendant in this case. Omnipol Ltd obtained an exequatur on 29 June 2004. As a consequence, Omnipol Ltd and the applicants have competing claims on the assets of CBI in Belgium. The applicants appealed the exequatur decision in the name and on behalf of CBI. The applicants base their claim on a lateral action in conjunction with Art. 43(1) Brussels I Regulation. According to Article 1166 of the Belgian Civil Code, creditors can exercise all patrimonial rights of their debtors, in the name of and on behalf of those debtors. The Court of First Instance in Brussels dismissed their appeal on 14 November 2005, on the basis that the applicants weren’t “party” to the procedure within the meaning of Art. 43(1) Brussels I Regulation. The Court of Cassation is uncertain about the scope of the term “either party” as mentioned in Art. 43(1) Brussels I Regulation. The Court notes that the wording of Art. 43 differs from its counterpart, Art. 36, in the Brussels Convention. The question is whether this changed the meaning of Art. 43. Therefore the Court refers a question for a preliminary ruling by the Court of Justice. The Court wants to know if a party, who is acting on behalf of its debtor, can be seen as a party within the meaning of Art. 43(1) Regulation 44/2001 even if this party was not party to the original procedure between the creditor and the debtor. Short critique The preliminary ruling of the ECJ was given on 23 April 2009 in case C-167/08. See final decision of the Court of Cassation of 17 September 2009 for the final solution of the case.