Author: Amber De Coninck

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.

Download

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.

Download

A. v Kingdom of Belgium

On By In First Instance Tribunal
Brussels First Instance Tribunal, A. v Kingdom of Belgium, Nr. 2013/9033/A, 4 May 2015

The claimant is a Belgian national born in Palestine. He asserts that numerous products originating from Israeli settlements in occupied Palestinian land are commercialized in Belgium undr the label ‘Made in Israel’, in contravention with international law. According to A., authorizing this commercialisation makes Belgium complicit in the illegal occupation of Palestine and Israel’s violations of international humanitarian law. In light hereof, the claimant requests the Court to forbid the Belgian State to continue allowing the entry and sale of these products.

However, the Court declared his claim inadmissible on the grounds that A. did not have a personal, direct, concrete and legitimate interest. Contrary to what A. asserts, this interest cannot be derived from the direct applicability of jus cogens. Only people who have a direct and personal interest because of the violation of international laws, can turn to the courts.

Download

F.H-E. v Kingdom of Belgium, Belgocontrol et al.

On By In Supreme Court
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.

Download

M.A.H.

On By In Supreme Court
Supreme Court, M.A.H., Nr. AR P.13.1856.N, 3 December 2013

In 2013, the Belgian police were able to arrest M.A.H., suspected to be involved in the hostage-taking of a Belgian merchant vessel off the Somali coast, after he was lured to Belgium under the pretence that he could be a part of a movie project about maritime piracy.
M.A.H. relied on diplomatic immunity, but the Belgian Supreme Court rejected this claim. In particular, the Court held that M.A.H.’s alleged diplomatic passport was a mere travel document delivered by the previous government, whereas the Somali documents qualifying him as an ‘anti-piracy officer” did not entail any diplomatic status either. What is more, his reasons for entering Belgium were purely private and had nothing to do with exercising any public function. The Belgian Foreign Ministry has also confirmed in writing that M.A.H. did not qualify for diplomatic immunity.

Download