Gerechthof Amsterdam; 2018-08-07; Leglux; 200.236.247/01 SKG
Decision by national courts in the field of European Union law — ECLI:NL:GHAMS:2018:2852
Date: 2018-08-07
Subject matter: Judicial cooperation in civil matters
Origin: Netherlands

82018NL0807(51)_ENG_SUMJURE
JURE summary
JURE summary
ECLI:NL:GHAMS:2018:2852 Gerechtshof Amsterdam (hereinafter ‘Court of Appeal in Amsterdam’), 07-08-2018, 200.236.247/01
Brussels I Regulation (recast) (1)
X, domiciled in the Netherlands, worked in Luxembourg as a subcontractor of Leglux, domiciled in Luxembourg. The parties agreed to a choice of law in favour of Luxembourgish law and the court of Luxembourg was agreed to have jurisdiction over their disputes. X claimed that Leglux should pay a number of outstanding invoices. A judgment issued by a court in Luxembourg ordered Leglux to pay to X almost EUR 83.000. However, after an appeal procedure, X’s primary claim was rejected and conversely, X was ordered to repay to Leglux the whole amount already received. X did not repay the sum, therefore, Leglux applied (in the Netherlands) to serve a garnishee order to ABN AMO bank to secure the money from X.
The Court of First Instance in the Netherlands declared its jurisdiction over the dispute on the basis of Article 35 of the Brussels I Regulation (recast) and ordered the repayment to Leglux by X. The garnishee order was upheld.
According to the Court of Appeal in Amsterdam, the agreement on a choice of law does not preclude the application of Article 35 of the Brussels I Regulation (recast). According to this article, ‘application may be made to the courts of a Member State for such provisional, including protective, measures as may be available under the law of that Member State, even if the courts of another Member State have jurisdiction as to the substance of the matter’. Provisional, including protective, measures within the meaning of Brussels I Regulation (recast) must be ‘understood as referring to measures which … are intended to preserve a factual or legal situation so as to safeguard rights the recognition of which is otherwise sought from the court having jurisdiction as to the substance of the case’ (Cases of the Court of Justice of the European Union C-104/03 and C-261/90) (2). However, this was not the case here and the Court of Appeal in Amsterdam concluded that the Dutch court had no jurisdiction over the claim brought by Leglux and therefore the garnishee order cannot be granted. It was apparent from the application for a garnishee order that it was requested only in the context of the present procedure. The judgment of the Court of First Instance in the Netherlands was annulled.
(1) Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
(2) Judgment of the Court of Justice of 28 April 2005, St. Paul Dairy Industries NV v Unibel Exser BVBA, C-104/03, ECLI:EU:C:2005:255)
Judgment of the Court of Justice of 26 March 1992, Mario Reichert, Hans-Heinz Reichert and Ingeborg Kockler v Dresdner Bank AG, C-261/90, ECLI:EU:C:1992:149.