Gerechtshof ’s-Hertogenbosch, uitspraak van 29/05/2007 KG C0301343BR en C0501414BR
Decision by national courts in the field of European Union law — ECLI:NL:GHSHE:2007:BA6947
Date: 2007-05-29
Subject matter: Judicial cooperation in civil matters
Origin: Netherlands

82007NL0529(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The plaintiff, with its seat in Germany, manufactures pipes. It formed exclusive service contracts with A and B, their seats being in the Netherlands and Belgium, respectively. Because of difficulties making payments, the parties agreed to an installment plan, such that the defendant guaranteed the debts of A and B. After the installment plan had been set up, A and B were ordered on 28.11.2003 by the Landgericht of Munster (DE) to render payment. B sued the plaintiff before the Rechtbank voor Koophandel of Antwerpen (BE) for damages arising in breach of contract. On appeal, the case was ruled on 16.10.2006 to be utterly without merit. On 22.02.2007, B seised the court in Antwerpen (BE) of its action anew. The plaintiff sued the defendant before the Rechtbank of Bread (NL) based on the guarantee. The defendant requested that, in light of the proceedings in Munster and Antwerpern, the proceedings be stayed or transferred pursuant to Article 28 Brussels I Regulation. The Rechtbank of Breda dismissed the request in its judgment dated 13.07.2005. The defendant appealed to the Gerechthof 's-Hertogenbosch (NL).
The Hof 's-Hertogenbosch affirms the ruling of the court of first instance. Article 28 Brussels I Regulation only establishes the possibility to stay or to transfer proceedings that become pending later in time. The proceedings here have been pending for quite some time already. The proceedings pending in Germany and in Belgium have been finally determined in the meanwhile. That B has refiled its action in Belgium that was finally adjudicated to be utterly without merit does not constitute a continuation of the proceedings originally pending before the courts. Therefore, in applying Article 28 Brussels I Regulation, the court must look to the latter date of the new proceedings, which became pending only after proceedings were pending before the Rechtbank of Breda (NL).