Supreme Court, F.H.-E. v Kingdom of Belgium, Belgocontrol et al., Nr. C.11.0521.F, 4 April 2014
After the bankruptcy of Air Zaïre, the Congolese minister of transportation designated Scibe Airlift as the temporary instrument of exploitation of the DCR’s air traffic rights under the 1965 air services agreement between the DCR and Belgium. This designation was subsequently approved by his Belgian colleague.
The bankruptcy curator for Air Zaïre challenged the latter move, arguing that the approval constituted a fault within the meaning of article 1382 of the Belgian civil code, as the abovementioned agreement, which had not been made public, designated Air Zaïre as the holder of DCR’s air traffic rights.
The Supreme Court recalled the judgement of the Court of Appeal, which held that, by accepting the designation of Scibe Airlift, Belgium had simply complied with its obligations under the 1965 agreement; that a State which signs an international treaty must implement that treaty in good faith and cannot therefore be accused of wrongdoing when it fulfils those obligations; and that the claimant had argued in vain that the Belgian State had deprived her of her rights and could not have done so by virtue of an undisclosed treaty, which could not be held against it. By so doing, the Court of Appeal had merely raised against the claim before it the limits which Article III of the 1965 placed on the right that the claimant sought to derive from that provision. The action for annulment was accordingly dismissed.
