Opinion of the Advocate General — ECLI:EU:C:2020:297
Date: 2020-04-23
Language of the case: Dutch
Subject matter: Area of freedom, security and justice;Judicial cooperation in civil matters
Procedure: Reference for a preliminary ruling
Origin: Belgium

summary of pleadings, the claim in both files sought 
- a determination that the B.V. Movic on the one hand, and B.V. Events Belgium 
and B.V. Leisure Tickets & Activities International on the other hand 
1. in Belgium, via the internet, perform acts entailing the regular resale of 
admission tickets for events, through the websites which they control 
2. in Belgium, via the internet, through the websites they control, make 
proposals regarding the regular reselling of admission tickets for 
events 
3. in Belgium, via the internet, through the websites they control, offer 
for sale admission tickets for events at a price that is higher than the 
price of [Or. 4] the admission ticket as stated by the original seller on 
the admission ticket 
4. remove the price as originally stated on an admission ticket by the 
original seller, on the tickets they sell for events in Belgium [...] 
5. remove and/or alter the name of the original buyer on an admission 
ticket for events in Belgium as inscribed by the organiser of the event 
6. create or may create the impression with the resale of a ticket for 
events in Belgium that their offer is occasional 
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7. in their sale offers via the internet for events in Belgium, do not 
mention the original price of the event ticket as determined by the 
original seller 
8. on the admission tickets to events in Belgium which they sell via the 
Internet, retain the words ‘normal price’, whereas their selling price 
does not correspond to the original price as determined by the original 
seller 
9. when selling tickets on the internet for events in Belgium, do not 
mention that, and by how much, they have increased the original price 
10. through the results of the ranking obtained by search engines on the 
internet, pretend to be the original sellers and/or official sales point for 
the tickets they sell for events in Belgium  
11. when offering event tickets for events in Belgium, do not mention, in 
print that is at least as large, before the actual offer and on the same 
page as the offer, that they are not the original sellers and/or that they 
are acting as resellers of event tickets,  
- a declaration that the practices found infringe the provisions of Article[s] [1]4§1, 
5§1 and 5§2 of the wet van 30 juli 2013 betreffende de verkoop van 
toegangsbewijzen tot evenementen (Law of 30 July 2013 regarding the sale of 
admission tickets to events) and of Articles VI.100, VI.97, VI.99 and VI.93 of the 
WER, if necessary in conjunction with articles 193b to l93g of Book 6 of the 
Nederlands Burgerlijk Wetboek (Dutch Civil Code), and an order that this cease  
- an order for a publication measure in one daily newspaper, one weekly 
newspaper and in one publication of a consumer organisation and on the home 
pages of the websites concerned [...] with the respondents ordered to pay the costs  
- the imposition of a fine of EUR 10 000.00 for each identified infringement since 
the handing down of the judgment [Or.5]  
- a ruling that it will be possible to determine the infringements simply by an 
official report in accordance with Article XV.2 ff. WER drawn up by a sworn 
official of the Algemene Directie Economische Inspectie.  
[...] 
[points relating to the contested judgment] 
[...] The original applicants lodged an appeal [...]. 
They are of the opinion that the court of first instance wrongly declared itself to 
lack international jurisdiction and they affirm their original claims. 
BELGISCHE STAAT AND OTHERS 
 
5 
The respondents claim, primarily, that the Appeal is unfounded due to lack of 
jurisdiction[.] 
At the hearing of 22 November 2018 the matter was dealt with only in relation to 
the issue of the jurisdiction of the Belgian court.  
2. Assessment 
1. 
At first instance Movic B.V. and Events Belgium B.V. and Leisure Tickets & 
Activities International B.V. raised a preliminary objection alleging lack of 
international jurisdiction on the part of the Belgian court. 
In the contested judgment the court of first instance declared itself to lack 
international jurisdiction. 
That position was based on the arguments of the current respondents that the 
current appellants could not invoke the rules of the Brussels Ibis Regulation or of 
the WIPR because their scope is limited to civil and commercial matters and the 
claims lodged do not fall within that scope.  
In order to reach that decision, the court of first instance ruled that, in bringing the 
current actions, the current appellants were exercising public powers. [Or.6] 
2. 
Primarily, the appellants rely on European Regulation 1215/2015 of 12 December 
2012 on jurisdiction and the recognition and enforcement of judgments in civil 
and commercial matters (Brussels Ibis Regulation). At issue is a transnational 
dispute in which the original defendants, now the respondents, are Dutch 
companies without a registered office in the Belgian territory. 
The material scope of the Brussels Ibis Regulation is limited to civil and 
commercial matters. In principle, all civil and commercial disputes fall within the 
scope of the Regulation except for the exceptions expressly provided for.  
The concept of civil and commercial matters must be interpreted autonomously, 
with the elements which characterise the nature of the legal dispute or the subject 
matter of the dispute being decisive (see, inter alia, Court of Justice, 11 April 
2013, Sapir and Others, C-645/11,)[.]  
The nature of the legal dispute concerns an action for a prohibitory injunction 
brought by the Belgian Government (Belgian State, Minister en de Algemene 
Directie van de Economische Inspectie) against Dutch companies which, from the 
Netherlands, via websites, focus on a mainly Belgian clientele for the resale of 
tickets for events taking place in Belgium.  
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The appellants allege that the respondents are infringing the wet van 30 uli 2013 
betreffende de verkoop van toegangsbewijzen tot evenementen and are not 
informing consumers sufficiently and/or are misleading them, and that 
infringements of the provisions of Book VI WER have also been committed.  
Disputes between a public authority and a person governed by private law may 
also be covered by the concept of ‘civil and commercial matters’ unless the public 
authority is acting in the exercise of its public powers (see, inter alia, CJEU, 
14 October 1976, 29/76 LTU v Eurocontrol, CJEU 14 November 2002, C-271/00 
Gemeente Steenbergen).  
The respondents maintain that, since in essence the current dispute is an action for 
a prohibitory injunction brought by a Belgian public authority, it does not fall 
within the material scope of the Brussels Ibis Regulation on the ground that in the 
present case the public authority is acting in the exercise of its public powers.  
They argue that the Belgian authorities are not pursuing their own interests nor 
enforcing their own rights, but are acting in the ‘general interest’ and in so doing 
derive their power from the fact that they are public authorities. [Or. 7] 
3. 
The appellants rely on Article 14§1 of the wet van 30 juli 2013: 
‘§1 
The voorzitter of the rechtbank van koophandel — now the 
ondernemingsrechtbank [-] shall determine the existence and order the cessation 
of an act that infringes the provisions of Article 5. The application for an 
injunction shall be brought by:  
1° the Minister; 
2° the directeur-generaal van de algemene directie Controle en Bemiddeling van 
de FOD Economie, K.M.O., Middenstand en Energie; 
3° the interested parties. 
The voorzitter of the rechtbank van koophandel [-] now the 
ondernemingsrechtbank [-] can order that his decision or the summary thereof 
that he draws up shall be displayed or made public in some other way during the 
period determined by him and at the expense of the offender. Such disclosure 
measures of disclosure may only be imposed if they are capable of contributing to 
the cessation of the act or its effects’.  
They also rely on Article XVII.7 WER with respect to the infringements of the 
provisions of Book VI WER:  
‘An action based on Article XVII.7 shall be instituted at the request of: 
BELGISCHE STAAT AND OTHERS 
 
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1° the interested parties; 
2° the Minister responsible for this matter or the directeur-generaal van de 
algemene directie Controle en Bemiddeling van de FOD Economie, K.M.O., 
Middenstand en Energie, unless the request relates to an act as referred to in 
Article VI.104; 
3° a public authority that regulates a profession, a professional or 
interprofessional association with legal personality; 
4° an association which protects the interests of consumers which has legal 
personality and in so far as it is represented in the [...] [Special Advisory 
Commission for Consumer Affairs] [...] or recognised by the Minister, in 
accordance with criteria established by a koninklijk besluit (royal decree), 
established after consultation in the Ministerraad (Council of Ministers), unless 
the request relates to an act as referred to in Article VI.104. 
By way of derogation from the provisions in Articles 17 and 18 of the Gerechtelijk 
Wetboek (Judicial Code), the associations referred to in the first paragraph, 3 ° 
and 4 °, may take legal action to defend their statutorily defined collective 
interests.’ [Or. 8] 
4. 
A public authority will be deemed to be acting by virtue of public authority if it 
exercises powers which fall outside the scope of the rules applicable to relations 
between individuals. 
The parties disagree as to whether, in the present case, the exercise of the powers 
of a public authority to institute legal proceedings for the purpose of curbing 
infringements of the wet van 30 juli 2013 betreffende de verkoop van 
toegangsbewijzen tot evenementen and the provisions of the WER, book VI [,] in 
a transnational situation, may or may not constitute an act by virtue of public 
authority.  
The appellants argue that they are not defending any public authority interests in 
the dispute in respect of the respondents, but rather, a general interest by 
promoting respect for the regulation of commercial practices which in turn seeks 
to protect the private interests of both businesses and consumers and which is 
governed by common law rules applicable in the relationship between individuals. 
In their view, therefore, an action for a prohibitory injunction does not concern the 
exercise of a public authority prerogative, so that consequently the dispute fits 
within the scope of civil and commercial matters of the Brussels Ibis Regulation. 
The respondents, on the other hand, maintain that the appellants are acting on the 
basis of powers which are based on provisions by which the national legislature 
conferred on the public authorities a prerogative of their own, by which they, 
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unlike an ordinary individual or company, can institute proceedings for a 
prohibitory injunction without having their own interest in the matter. They 
maintain that the appellants are therefore acting on the basis of their public 
authority, since they are not themselves affected. 
For that reason, the dispute does not fall within the scope of the Brussels Ibis 
Regulation. 
5. 
Given that the existing case-law of the Court of Justice does not seem to be 
applicable to the specific situation in the current dispute and given the importance 
of a uniform application of European Union law, the Hof van beroep considers it 
appropriate to refer a question to the Court of Justice for a preliminary ruling.  
The answer to the question referred seems necessary to enable it to settle the 
objection raised regarding international jurisdiction under European treaty law. 
[Or. 9] 
3. Decision 
[...] [procedural points]  
Before giving judgment in accordance with Article 267 of the Treaty on the 
Functioning of the European Union (TFEU), the Hof van beroep will refer the 
following question to the Court of Justice of the European Union for a preliminary 
ruling: 
‘Is an action concerning a claim aimed at determining and stopping infringing 
market practices and/or commercial practices towards consumers, instituted by 
the Belgian Government in respect of Dutch companies which from the 
Netherlands, via websites, focus on a mainly Belgian clientele for the resale of 
tickets for events taking place in Belgium, pursuant to Article 14 of the wet van 30 
juli 2013 betreffende de verkoop van toegangsbewijzen tot evenementen (Law of 
30 July 2013 regarding the sale of admission tickets to events) and pursuant to 
Article XVII.7 WER, a civil or commercial matter within the meaning of 
Article 1(1) of the European Regulation 1215/2012 of 12 December 2012 on 
jurisdiction and the recognition and enforcement of judgments in civil and 
commercial matters, and can a judicial decision in such a case, for that reason, 
fall within the scope of that Regulation?’  
[...] 
[closing formula, signatures administrative notices]