Background
Facts
Decision
Comment
Before May 31 2001 the transmission and service of judicial documents between Belgium and Germany was carried out in accordance with the Hague Conventions of 1954(1) and 1965,(2) and the bilateral Belgian-German Agreement of 1959.(3) According to Article 1 of that agreement, the service of a writ of summons on a German party was deemed to occur the moment the president of the local German court received the writ. Only then was the limitation period for claims interrupted.
EU Council Regulation 1348/2000(4) came into force on May 31 2001. This regulation aims to improve the efficiency and speed of transmitting and serving judicial and extra-judicial documents between local bodies designated by EU member states.
The optional character and possible conditional application of certain provisions of Council Regulation 1348/2000 meant that there were no changes in the law. Consequently, the established case law of the Belgian Supreme Court remains in force.
A Belgian company used the services of a German charterer to transport bananas from Ecuador to Belgium. The vessel arrived in Belgium on October 25 1990. After unloading the freight, damage caused during the journey was discovered. On October 25 1991 the Belgian company submitted a writ of summons to the Belgian prosecutor, who then transferred the documents to the president of the competent court in Germany on November 5 1991. The president of the competent German court received the documents on November 12 1991.
At first instance the Bruges Commercial Court decided that the Belgian company's claim was filed too late. According to Articles 91 and 266 of the Sea Act, the Belgian company should have filed its claim before October 26 1991. However, the writ of summons was received by the president of the competent German court after that date.
The Ghent Appeal Court overruled this decision. It held that the Belgian company had expressed its intention to file a claim before the end of the limitation period by submitting its writ of summons to the Belgian prosecutor on October 25 1991.
The Supreme Court(5) overruled this judgment and confirmed its long-standing jurisprudence based on the Hague Treaties of 1954 and 1965 and the Belgian-German Agreement of 1959. The court stipulated that the date of receipt of the writ of summons in Germany by the president of the competent court is crucial in determining whether a claim against a German debtor is filed within the limitation period.
The current position regarding the service and transmission of judicial and extrajudicial documents between Belgium and Germany is unsatisfactory. It is obvious that the Hague Conventions of 1954 and 1965 and the Belgian-German Agreement of 1959 places Belgian creditors with German debtors in a worse position than, for example, Belgian creditors with French or Dutch debtors. A Belgian creditor nearing the end of the limitation period is faced with the problem of not knowing when the president of the competent German court will receive its documents.
For further information on this topic please contact Luc Demeyere at Allen & Overy by telephone (+32 3 287 7222) or by fax (+32 3 287 7244) or by email ([email protected]).
Endnotes
(1) The Hague Convention on Civil Actions of March 1 1954.
(2) The Hague Convention on the Service and Transmission of Judicial and Extrajudicial Documents in Civil and Commercial Matters of November 15 1965.
(3) Agreement between Belgium and Germany of April 25 1959 implementing the Hague Treaty of March 1 1954.
(4) EU Council Regulation 1348/2000 of May 29 2000 on the Service and Transmission in the Member States of Judicial and Extrajudicial Documents in Civil or Commercial Matters, OJ, L 160, June 30 2000.
(5) Supreme Court, May 2 2002, RC02521_1.