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In view of the specific features of the Belgian legal structure, for the sake of clarity we need to deal with questions A and B.I together.
First we should distinguish between full jurisdiction (sometimes also called material jurisdiction) and territorial jurisdiction.
Each claim has a subject and often, also, a money value. The legislature determines the scope of full jurisdiction by specifying the nature and value of the claims which the court may examine.
In this information pack, full jurisdiction is described in the answer to questions A and B.I.
No court has jurisdiction over the whole territory of Belgium. The law has divided our country into judicial territories (districts, regions etc.) Each court only has power for its area (territory). This is known as territorial jurisdiction. You will find a description of this in the answer to question B.II.
Full jurisdiction: the court of first instance
The court of first instance has ‘full jurisdiction. This means that the court of first instance, unlike the other legal forums, can examine all cases, including those which fall within the jurisdiction of other legal forums.
Article 568 of the Judicial Code provides that the court of first instance shall examine all claims except those which come directly before the Court of Appeal and the Court of Cassation. The full jurisdiction of the court of first instance is therefore conditional, because the defendant may plead lack of jurisdiction on grounds of the special jurisdiction of another judge. In addition, the court of first instance also has a number of exclusive powers. A number of disputes should be referred to this court even if the value of the claim is less than €1860, e.g. claims concerning personal status or capacity.
The following is a list of the other legal forums and a brief description of their full jurisdiction.
a) Justice of the peace
Under Article 590 of the Judicial Code, all claims amounting to less than €1860 fall within the jurisdiction of the justice of the peace, except those which the law expressly assigns to the jurisdiction of another court. Apart from this general jurisdiction, the justice of the peace is assigned a number of special powers (see Judicial Code Articles 591, 593 and 594) and exclusive powers (Judicial Code Articles 595 and 597), regardless of the amount of the claim. Examples of these special powers are differences in matters of leasing, co-ownership, easements and maintenance payments. The justice of the peace is also authorised to draw up deeds of adoption and affidavits. Urgent dispossessions and deeds under seal are the exclusive competence of the justice of the peace.
b) Police court
Under Article 601 bis of the Judicial Code, the Police Court examines all claims for compensation of losses deriving from traffic accidents, regardless of amount. This is an exclusive power.
c) Commercial Court
Under Article 573 of the Judicial Code, the commercial court examines, in the first instance, disputes between traders involving actions which the law treats as commercial transactions and which do not fall under the general jurisdiction of the justice of the peace or under the power of the police courts. A non-trader who sues a trader may also opt to bring the matter before the commercial court, but a trader cannot open proceedings against a non-trader before the commercial court. In addition, the commercial court examines disputes concerning bills of exchange and promissory notes where the claim amounts to more than €1860.
In addition to these general powers, the commercial court also has a number of special and exclusive powers. The special powers are listed in Article 574 of the Judicial Code. They include disputes concerning limited companies and shipping claims (seagoing and internal navigation). Article 574.2 of the Judicial Code describes the commercial court’s exclusive power: claims and disputes directly arising from bankruptcy and judicial composition in accordance with the provisions of the Bankruptcy Act and the Judicial Compositions Act, where the details of the settlement are found in the special law applicable to the system of bankruptcy and judicial composition.
d) Employment tribunal
The employment tribunal is the main extraordinary court, and most of its powers are special. Its powers are described in Articles 578 ff. of the Judicial Code, and relate to disputes in the following fields:
The employment tribunal has exclusive jurisdiction to impose the administrative sanctions defined in the laws and decrees mentioned in Judicial Code Articles 578 to 582 and in the Act concerning Administrative Fines in case of Breach of Certain Social Security Laws.
e) Presiding judges of the courts – the interim injunction
Judicial Code Articles 584 to 589 prescribe that, in all urgent cases, presiding judges of the courts (first instance, commercial and employment) may issue interim injunctions in matters falling within their courts’ jurisdiction. The proviso is that the cases must be urgent and the injunction is only provisional, without prejudice to the case itself. Examples are ordering an expert investigation, ordering hearing of a witness, and so on.
f) Judge of attachments (see Judicial Code Article 1395)
All claims concerning pre-judgment attachments, means of enforcement and collective debt settlement are brought before the judge of attachments.
g) Youth judge
Although the Communities (the component states of the Belgian Federation) are competent for youth protection, the organisation of the youth courts is still always a federal matter. It is governed by the Federal Youth Protection Act of 8 April 1965. The youth court is a division of the court of first instance which concentrates on youth protection measures. In addition, the youth court has jurisdiction in a number of civil matters, such as approval of an adoption, disputes between parents over the exercise of parental authority and access rights, etc.
The Belgian legal system is based on the plaintiff’s freedom of choice. The general rule is established in Section 624(1) of the Judicial Code. Normally, the plaintiff brings the case before the judge of the place of residence of the defendant, or of one of the defendants.
What if the defendant is a legal person? A legal person’s place of residence is that of its main place of business, i.e. the administrative headquarters from which the undertaking is managed.
In a number of cases, the plaintiff has a choice of referring the case to another judge. One provision describing this is Section 624(2) to (4) of the Judicial Code. In addition to the judge of the place of residence of the defendant, or of one of the defendants, the plaintiff can opt as follows:
- for the judge of the place where the disputed obligations, or one of them, have arisen or where they are being, are or have to be fulfilled;
- for the judge of the place of residence chosen for implementation of the transaction; or
- for the judge of the place where the bailiff spoke to the defendant in person if neither the defendant nor, as the case may be, one of the defendants has a residence in Belgium or abroad.
The case-law also assumes that, in interim injunction proceedings, the presiding judge of the place where the decision has to be implemented has territorial jurisdiction.
As for maintenance payments, Section 626 of the Judicial Code prescribes that claims for the maintenance payments defined in Section 591(7) may be brought before the judge of the plaintiff’s place of residence.
However, the provisions of Sections 624 and 626 are non-mandatorylaw, and the parties may deviate from them. Therefore the parties may reach a jurisdiction agreement in each case, whereby any dispute can only be referred to specified courts in the first instance.
A few exceptions do exist to this basic principle of freedom of choice.
The legislature has a number of cases in which the plaintiff has no choice. These cases are specified in Sections 627 to 629 of the Judicial Code. Examples are:
- in disputes about contracts of employment (Section 627(9)): the competent judge is the judge of the place where the mine, factory, place of work, store or office is located and, in general, of the place designated for the operation of the undertaking, the pursuit of the profession or the business of the company, association or grouping.
- when the claim is for divorce or judicial separation on grounds of certain facts, or for conversion of a judicial separation into divorce (Section 628(1)): the competent judge is the judge of the place of the last matrimonial home, or of the defendant’s place of residence.
However, even in such cases, the loss of freedom of choice is not total. Section 630 of the Judicial Code in any case allows the parties to agree to deviate from the statutory provision after the dispute has arisen. However, agreements made before the dispute arose are automatically void.
In a number of cases, as described in Sections 631 to 633 of the Judicial Code, one court has sole territorial jurisdiction. The plaintiff therefore has no choice, and no agreement of jurisdiction is possible, either before or after the dispute arises. These cases include the following:
- bankruptcy (Section 631): the commercial court in the judicial area where the trader had its main place of business or, if a legal person, its head office, on the date of filing for bankruptcy or opening of the legal action. Secondary bankruptcy: the commercial court located in the judicial area where the bankrupt has the relevant establishment. If there are several establishments, the court to which the matter is first referred is competent.
- Judicial composition (Section 631): the competent commercial court is the one located in the judicial area in which the debtor had its main place of business or, if a legal person, its head office, on the effective date of the composition.
- Disputes concerning the application of the Tax Act (Judicial Code Section 632): these fall within the competence of the judge sitting on the premises of the appeal court building in whose judicial area the office, where the tax is or has to be collected, is located. If the dispute is unconnected to collection of a tax, the judicial area is the one of the tax department which gave the contested order.
- Claims about pre-judgment attachments and means of enforcement (Section 633): the judge of the place of attachment is competent, unless the law requires otherwise. For garnishment, the judge of the place of residence of the attached debtor is competent. If the attached debtor’s place of residence is abroad or unknown, the judge of the place of enforcement of the attachment is competent (see also Section 22(5) of Council Regulation (EC) No 44/2001 of 22 December 2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters).
As stated, the rules of Sections 624 and 626 are non-mandatory law, and the parties may deviate from them. For each dispute, the parties may conclude a jurisdiction agreement whereby any dispute can only be referred to certain courts in the first instance.
In the cases of Sections 627 to 629 of the Judicial Code, no jurisdiction agreements can be concluded before the dispute has arisen. However, it can be inferred from Section 630 that, after the dispute has arisen, such agreements are indeed allowed.
In the cases described in Judicial Code Sections 631 to 633, no agreements can be made concerning jurisdiction.
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Last update: 22-04-2005