Hoge Raad, civiele kamer, arrest van 07/11/2008 Realchemie Nederland BV / Industrieverband Agrag EV
Decision by national courts in the field of European Union law — ECLI:NL:HR:2008:BD7584
Date: 2008-11-07
Subject matter: Judicial cooperation in civil matters
Origin: Netherlands

82008NL1107(01)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The respondent A, with its seat in Germany, obtained a provisional order against the petitioner B, with its seat in the Netherlands, from the Landgericht of Frankfurt am Main (DE) without making oral arguments. B was ordered to pay the court costs and an order setting costs (Kfb) was issued. The Rechtbank of 's-Hertogenbosch declared the Kfb enforceable in the Netherlands. After an unsuccessful appeal on the declaration of enforceability, B filed a petition to appeal on a point of law with the Hoge Raad (NL). B based its appeal on the grounds that the provisional order was not a judgment within the meaning of Article 38 Brussels I Regulation, and such was true also for the Kfb on which the provisional order was based. Additionally, the order and the Kfb were issued without oral arguments, meaning the declaration of enforceability must be rejected pursuant to Article 34(2) Brussels I Regulation.
The Hoge Raad relies on the ruling of the ECJ in re Denilauler/Couchet Frères (21.05.1980, Rs. 125/79) and Maersk/De Haan (14.10.2004, C-39/02). According to those decisions, a court decision does not fall under Chapter III of Brussels I Regulation if it is (a) an order for provisional measures or measures intended to fulfil a security purpose (b) that was issued without the opposing party having been charged; and (c) is ordered to be enforced on that party without a previous service of process. The requirements (a), (b), and (c) are to be read cumulatively. As both the provisional order and the Kfb were duly served on B and can be contested in appellate proceedings, this is not a case of a decision that is to be enforced without previous due service of process. Article 34(2) Brussels I Regulation is not relevant, as the present case does not involve judgments that touch on the default of appearance of the defendant, but rather those that may be issued without opening oral arguments. The Hoge Raad dismisses the appeal.