2017/2/28 - 30 Cdo 2784/2016 (summary)

Judgement of the Supreme Court dated 28 February 2017, file number 30 Cdo 2784/2016

(international jurisdiction, european enforcement order)

The applicant claimed a refund of the purchase price and related accessories. The reason was the applicant's withdrawal from the purchase contract. A payment order was issued in respect of which the defendant lodged a complaint as a defense against this payment order. Accordingly, she stated that the court has no international jurisdiction to decide the case because, under the terms and conditions that were part of the contract, the relevant commercial court in Belgium was determined to decide the dispute. The court of first instance rejected the defendant's objection of lack of international jurisdiction because the defendant failed to prove that the terms and conditions were part of the purchase contract. The appellate court subsequently upheld the order of the court of first instance. Although there is a relevant international element because the defendants are foreign subjects, having regard to Regulation (EU) No 1215/2012 of the European Parliament and of the Council (Brussels Regulation I bis') the defendant did not satisfy the requirement to raise the objection of ​​lack of jurisdiction of the court of first instance as part of the first act before the court (that is, when the defendant lodged a complaint against the payment order as a defense). The defendant, in his appeal to the Supreme Court, expressed the view that lodging a complaint was not the first act on the merits and therefore, she was not obliged to raise the objection of lack of international jurisdiction.

The Supreme Court assessed the question of the moment when the objection of lack of international jurisdiction under Article 26 (1) of the Brussels I bis Regulation should be raised in the case of lodging a complaint against a payment order. Under Article 26 (1) of the Brussels Ibis Regulation, a court of a Member State before which a defendant enters an appearance shall have jurisdiction. This rule shall not apply where appearance was entered to contest the jurisdiction. The Court has therefore dealt with an interpretation of the term "appearance of a defendant before a court" in relation to lodging a statement of defense against a payment order within the meaning of Article 26 of the Brussels I bis Regulation. Referring to previous case law, the Supreme Court stated that the first defense addressed to a court is not a defense against a payment order, but the first procedural act by which the defendant turns to the court following the cancellation of the payment order.