Lloyd's Maritime and Commercial Law Quarterly
International Private Law
Ardavan Arzandeh*
CASES
223. Aertssen Terrassements SA v VSB Machineverhuur BV 1
Conflict of laws—allocation of jurisdiction under Brussels Regime—interpretation of Brussels I Regulation, Arts 1, 27(1) and 30
The claimant, AT, was a corporation domiciled in Belgium. The defendants, VSB and others, were Dutch entities. The claimant accused the defendants of fraudulent conduct and commenced criminal and civil proceedings in Belgium against them. Soon thereafter, the claimant made an application to the Dutch court, seeking to obtain an attachment order against the defendants. As a condition for granting the order, the claimant also had to initiate its substantive claim against the defendants in the Netherlands. However, not long after the start of those proceedings, the claimant pointed to the pending litigation in Belgium and argued that the Dutch court lacked jurisdiction to entertain the case, pursuant to Brussels I Regulation, Art.27(1) (or, alternatively, Art.28). The defendants responded that the ongoing action in Belgium was in fact criminal in nature, falling outside the material scope of Brussels I, as highlighted under Art.1.
In these circumstances, the Dutch court decided to stay its proceedings and ask for a preliminary ruling from the Court of Justice of the European Union (“ECJ”), among others, in relation to the following three questions: (1) Is the Belgian claim a “civil and commercial matter” for the purpose of Art.1? If so, then, (2) does the instant case fall within the scope of Art.27? (3) For the purpose of Art.30, had the claim been lodged in Belgium?
Held: (1) The Belgian claim was civil and commercial in nature, as defined under Art.1, because it concerned an action for monetary compensation. (2) The case fell within the scope of Art.27, notwithstanding the fact that the judicial investigation of the case in Belgium was still ongoing. (3) For the purpose of Art.30, the time when the complaint was lodged has to be considered.
Comment: In responding to the Dutch court’s questions, the ECJ adopted an entirely pragmatic approach. In interpreting Art.1, the ECJ relied on its earlier decision in Sonntag v Waidmann,2 stating that, “even though it is joined to criminal proceedings, a civil action for compensation for injury to an individual resulting from a criminal offence continues to be civil in nature”.3 Similarly, in construing Art.27, the ECJ yet again emphasised the
* Lecturer in Law, University of Bristol.
1. (Case C-523/14) EU:C:2015:722.
2. (Case C-172/91) [1993] ECR I-1963; [1993] ILPr 466.
3. At [31].
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