Belgian Court Rules on Jurisdiction for Restitution Claims
On 13 December 2012, the Court of Appeal of Liege held that restitution claims fall within the scope of Article 2 of the Brussels I Regulation.
A Belgian company was suing a Luxembourg company in Belgium. The companies had concluded a contract for carriage of goods. The Belgian company claimed restitution of certain payments from the Luxembourg party.
The Belgian Court wondered whether restitution claims belong to Article 5.1 or 5.3 of the Brussels I Regulation. It concluded that they do not, because under the Belgian law of obligations a claim in restitution is quasi-contractual and thus neither contractual nor delictual. As a consequence, the court held, only Article 2 applied.
It is unclear whether any party argued that there might be autonomous interpretation of the Brussels I Regulation, and that the European Court of Justice judgment in Kalfelis might well stand for the proposition that quasi-contractual claims are delictual for the purpose of Article 5.3 of the Regulation.
This decision is interesting as to the distribution of the roles between the parties. There had been some kind of contractual relation . However, the claimant demands “restitution” of an amount of money it claims to have paid “too much” and in error based on a statutory (Belgian) provision. For the sake of the material claim, the claimant therefore has an interest that there is no contractual basis for the payment. However, as regards jurisdiction the claimant tries to raise the claim in its home country under Art 5.1 of the Regulation, which in turn needs the contract.
The claimant did do something clever in my eyes and pleaded that the amounts were initially paid as retainer for transportation invoices. Unfortunately, there is not much reported on the arguments of the defendant, but it may well be that the defendant stayed pretty quiet. Usually you would have expected that a defendant – wanting to keep the payment – would immediately argue that the payment had not been effected without obligation but that it did fall under the contract. In this preliminary phase of the proceedings this might have hurt fighting the Art 5.1 venue.
It seems to be quite a dilemma for the claimant at least under the approach taken by the Court of Liège. The shortcomings will probably be visible, when the claimant subsequently brings a claim at the seat of the defendant and then – with no need to hold back – the defendant will argue a full contractual obligation for the payment, which would have backed jurisdiction in the first proceedings.
The solution of the Court of Liège is rather dissatisfying. The classification as quasi-contractual as to Belgian law cannot play a decisive role because of the required autonomous interpretation (e.g. Frahuil C-265/02). There is caselaw of the ECJ that Art 5 .1 is also applicable on disputes on the validity of the contract, i.e. where it is doubtful, if a contractual obligation exists (e.g. Effer 38/81). This is a very similar dilemma between the assessment of the material claim and jurisdiction. And at least in the caselaw of the Austrian Supreme Court, Art 5.1 is also widely applied on many kinds of “secondary” contractual claims (damages and restitution) even if they are strictly speaking founded in statutory law (E.g. OGH 4 Ob 116/02v).
I would therefore see it as the more natural interpretation of Art 5.1 that a claimant should be able to argue a legitimate venue jurisdiction based on a dispute on the contractual basis of a payment, even if winning the claim on the material level would require to establish that no contractual obligation existed. Otherwise this would be an imbalance with the opponent, who could base jurisdiction for a (negative) declaratory claim on the very same dispute.