Hoge Raad, uitspraak van 12/03/2010 08/04424
Decision by national courts in the field of European Union law — ECLI:NL:HR:2010:BK4932
Date: 2010-03-12
Subject matter: Judicial cooperation in civil matters
Origin: Netherlands

82010NL0312(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The Hof van Beroep of Brussels (BE) ordered a Belgian debtor to pay a sum of money to a creditor in the Netherlands. The creditor became insolvent and a liquidator was appointed. Upon application of the liquidator, the Belgian judgment was declared enforceable in the Netherlands under Article 38 Brussels I Regulation. The debtor appealed under Article 43 Brussels I Regulation and asserted payment had already been made by way of set-off. The appeal was rejected by the Rechtbank 's-Hertogenbosch (NL), which held that a declaration of enforceability can only be revoked on one of the grounds of Articles 34 and 35 Brussels I Regulation. The debtor appealed to the Hoge Raad (NL).
The Hoge Raad states that it is not clear whether an appeal against the declaration of enforceability under Article 43 Brussels I Regulation may be based on facts that occurred after the judgment that was declared enforceable has been given. The word 'only' in Article 45(1) Brussels I Regulation suggests that the grounds for refusing or revoking a declaration of enforceability are limited. However, the Jenard and Schlosser Reports, Dutch legal writing, and German legislation and case law suggest that an appeal under Article 43 Brussels I Regulation may be based on such later facts. The issue is not settled under the case law of the ECJ. The Hoge Raad requests the ECJ for a preliminary ruling whether Article 45 Brussels I Regulation precludes the court with which an appeal is lodged under Article 43 or Article 44 from refusing or revoking the declaration of enforceability on a ground, other than one of those specified in Articles 34 and 35, which has been advanced against enforcement of the judgment declared enforceable and which arose after that judgment had been delivered, such as the ground that there has been compliance with that judgment.