Category: Supreme Court

M.R. v La Posterie

On By In Supreme Court
Supreme Court, M.R. v La Posterie, Nr. C.16.0039.N, 28 October 2016
ECLI:BE:CASS:2016:ARR.20161028.6

The Belgian Supreme Court adjudges that the immunity of jurisdiction of a member of the United States Permanent Representation to NATO (as per Article XII of the Ottawa Agreement and Articles 29-31 of the Vienna Convention on Diplomatic Relations (VCDR)) does not violate the right of access to court (Article 6 ECHR). In a case involving a dispute over the payment of rent arrears, the lower court had previously held that such immunity would violate the right of access to court, in light of the fact that the proceedings would “in no way compromise” the proper functioning of the US Permanent Representation or NATO itself. According to the Supreme Court, however, this approach was not legally justifiable. The Supreme Court further recalls that lawsuits regarding the lease of a private home do not fall within the exception to immunity from jurisdiction under Article 31 (1) (a) VCDR.

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M.E.Y. v O.R.V. / F.B. v Politiezone nr. 5340 Brussel-West, D.B. et al

On By In Supreme Court
Belgian Supreme Court, M.E.Y. v O.R.V.; F.B. v Politiezone nr. 5340 Brussel-West, D.B. et al, Nr. P.16.0244.N, 24 May 2016
ECLI:BE:CASS:2016:ARR.20160524.5

The case concerns an action for annulment brought against a judgment of the Antwerp Court of Appeals finding the applicants guilty of terrorist offences under the Belgian Criminal Code in connection with their involvement in islamist terrorist groups abroad. In particular, the applicants unsuccesfully raise breaches of Article 3 of the Geneva Conventions, Article 141bis of the Belgian Criminal Code, Article 7 ECHR and the principle of legality. All claims are, however, dismissed by the Supreme Court.

Pursuant to Article 141bis of the Criminal Code, the provisions pertaining to terrorist offences do not apply to the conduct of armed forces during an armed conflict. Such ‘armed conflict’ exists whenever when there is armed violence between States or protracted armed violence between State authorities and organized armed groups or between such groups within a State. The existence of a non-international armed conflict is determined primarily in light of the intensity of the conflict and the degree of organization of the parties involved. Other criteria cited by international jurisprudence are merely indicative criteria that can be used to interpret the requirements of intensity and organization. The appraisal of these criteria in a given case is a matter for the judge of the merits, and is not subject to review by the Supreme Court (as long as proper statement of reasons is provided).

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J.P.-A. v Kingdom of the Netherlands and Dutch Central Bank

On By In Supreme Court
Supreme Court, J.P.-A. v Kingdom of the Netherlands and Dutch Central Bank, Nr. C.14.0322.F/1, 23 October 2015

During the financial crisis of 2008, the Dutch State decided to buy the Dutch activities of the Fortis group instead of proceeding with the recapitalization as previously agreed to. In the wake of the events, a group of former shareholders decided to file a lawsuit against the Dutch State, as well as against the Dutch central bank (DNB), which they deemed complicit in the dismantling of the Fortis group.

In 2013, the Court of Appeal held that the Kingdom of the Netherlands and DNB enjoyed immunity from jurisdiction. In particular, the Court found that while both Belgium and the Netherlands had made a declaration pursuant to Article 24 of the European Convention on State Immunity (the Basel Convention), such declarations were without prejudice to the immunity from jurisdiction which foreign States enjoy in respect of acts performed in the exercise of sovereign authority. After careful consideration of the nature of the act, the context in which the act was done and the capacity in which the Dutch State had acted (as the guarantor of the State’s financial stability), taking into account the context in which the Dutch State acted (cf. the urgency and severity of the financial crisis and the absence of a private investor capable of intervening), the Court of Appeal concluded that the Dutch State had effectively acted in the exercise of its public authority and accordingly enjoyed immunity from jurisdiction. Furthermore, while DNB constituted a distinct legal entity, it equally enjoyed immunity from jurisdiction for ‘acts performed by the entity in the exercise of sovereign authority’ pursuant to Article 27(2) of the Basel Convention.

The Belgian Supreme Court adjudges that this conclusion was legally constituted and dismisses the appeal in cassation.

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R.J.V.D.B. v Imperial Tomacco Ltd. and Gallagher Ltd.

On By In Supreme Court
Supreme Court, R.J.V.D.B. v Imperial Tobacco Ltd. and Gallagher Ltd, Nr. 14.0414.N, 26 May 2015

In this case, the claimant seeks annulment of a judgment of the Antwerp Court of Appeal, inter alia on the basis of an alleged breach of Article 22(3) of the Vienna Convention on Diplomatic Relations (VCDR). In particular, the claimant argues that a vehicle of the Ivorian embassy in London with a British diplomatic license plate be immune from search and seizure in the context of a criminal investigation in Belgium.  The Supreme Court recalls that Art. 22(3) VCDR regulates mutual obligations between the sending and receiving States. By contrast, neither Article 22(3) nor article 40 VCDR provide immunity from investigation or seizure of a means of transportation of a diplomatic mission that is not accredited in Belgium.

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Central Bank of Iraq v Commerzbank AG, Prysmian Finland OY et al.

On By In Supreme Court
Belgian Supreme Court, Central Bank of Iraq v Commerzbank AG, Prysmian Finland OY et al., Nr. C.14.0459.N/1, 15 May 2015

The Belgian Supreme Court observes that the immunity from execution owed to foreign States pursuant to customary international law, treaty law or national law, is not absolute and is susceptible to waiver of immunity. Immunity from execution does not alter the fact that grievances regarding the seizability of goods must be brought before the court in a timely manner.

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