For the sake of clarity, in view of the specific characteristics of the Belgian legal system, we will deal with questions 1 and 2.1 together.
A distinction should first be made between jurisdiction by reason of subject-matter (compétence d’attribution/volstrekte bevoegdheid, also known as compétence matérielle/materiële bevoegdheid) and territorial jurisdiction (compétence territoriale/territoriale bevoegdheid).
Any action puts forward a claim, which will often have a monetary value, and the scope of a court’s subject-matter jurisdiction is determined by legislation that specifies the nature and value of the claims that the court is permitted to hear.
This answer to questions 1 and 2.1 deals with subject-matter jurisdiction.
The lower courts do not have jurisdiction over the whole of Belgium. The law divides the country into separate areas (subdistricts, districts, etc.). Each court has jurisdiction only in its own area. This is known as territorial jurisdiction, which is described in the answer to question 2.2.
Unlimited jurisdiction: the court of first instance
The court of first instance (tribunal de première instance/rechtbank van eerste aanleg) has ‘unlimited jurisdiction’ (plénitude de compétence/volheid van bevoegdheid). This means that the court of first instance, in contrast to the other courts, can hear all cases, including cases that fall within the jurisdiction of other courts.
Article 568 of the Judicial Code (Code judiciaire/Gerechtelijk Wetboek) states that the court of first instance will hear all claims except for those that have to be brought directly before the court of appeal (cour d’appel/hof van beroep) or the Court of Cassation (Cour de cassation/Hof van Cassatie). The unlimited jurisdiction of the court of first instance is ‘conditional’, in the sense that a defendant can object that the court lacks jurisdiction because another court has special jurisdiction for the subject-matter. The court of first instance also has exclusive jurisdiction over certain matters. Certain types of dispute must be brought before the court of first instance even where the value of the claim is less than €2 500, an example being claims relating to personal status.
A list of the other courts is given below, along with a brief description of their subject-matter jurisdiction.
a) The justice of the peace
Pursuant to Article 590 of the Judicial Code, the justice of the peace (juge de paix/vrederechter) has general jurisdiction over all claims with a value below €2 500, except for those that the law expressly assigns to another court. Beyond this general jurisdiction, the justice of the peace also has special jurisdiction (see Articles 591, 593 and 594 of the Judicial Code) or exclusive jurisdiction (Articles 595 and 597 of the Judicial Code) over certain matters irrespective of the value of the claim. Examples of matters falling under the special jurisdiction of the justice of the peace are disputes in connection with leases, joint property, rights of way and other servitudes, and maintenance payments. The justice of the peace has jurisdiction to deal with adoption papers and acknowledgments of paternity. Urgent expropriations and the placing of seals on property fall under the exclusive jurisdiction of the justice of the peace.
b) The police court
Pursuant to Article 601 bis of the Judicial Code, the police court (tribunal de police/politierechtbank) hears all claims for compensation resulting from road traffic accidents, irrespective of the amount. Here the police court has exclusive jurisdiction.
c) The commercial court
Pursuant to Article 573 of the Judicial Code, the commercial court (tribunal de commerce/rechtbank van koophandel) hears, at first instance, disputes between businesses, that is to say disputes between persons or firms engaged in a long-term economic activity which relate to acts carried out as part of that activity and which do not fall under the special jurisdiction of another court.
A non-business claimant who is instituting proceedings against a business can opt to bring the case before the commercial court. The commercial court also hears disputes relating to bills of exchange and promissory notes.
In addition to this general jurisdiction, the commercial court has special and exclusive jurisdiction in certain cases. The matters falling under its special jurisdiction are listed in Article 574 of the Judicial Code. They include disputes relating to commercial companies and actions relating to maritime and inland navigation. Under Article 574(2) of the Judicial Code the commercial court has exclusive jurisdiction in actions and disputes resulting directly from bankruptcy and judicial reorganisation proceedings in accordance with the Bankruptcy Law of 8 August 1997 (loi du 8 août 1997 sur les faillites/faillissementswet van 8 augustus 1997) and the Law of 31 January 2009 on the continuity of businesses (loi du 31 janvier 2009 relative à la continuité des entreprises/wet van 31 januari 2009 betreffende de continuïteit van de ondernemingen), where they are governed by the particular law applicable to bankruptcy and judicial reorganisation proceedings.
d) The labour tribunal
The labour tribunal (tribunal du travail/arbeidsrechtbank) is the main special court, and has jurisdiction essentially in matters specifically assigned to it. These matters are described in Article 578 et seq. of the Judicial Code and are as follows:
The labour tribunal has exclusive jurisdiction over the application of administrative penalties laid down by the laws and regulations referred to in Articles 578 to 582 and by the Law on administrative fines applicable in the event of the infringement of certain social laws (loi relative aux amendes administratives applicables en cas d’infraction à certaines lois sociales/wet betreffende de administratieve geldboeten in geval van inbreuk op sommige sociale wetten), and also over claims relating to the collective settlement of debts.
e) Presiding judges of the lower courts – interlocutory proceedings
Articles 584 to 589 of the Judicial Code stipulate that the presiding judges of the court of first instance, the commercial court and the labour tribunal have power, in all urgent cases, to issue interim rulings in matters falling within the jurisdiction of their court (interlocutory proceedings (référé/kort geding)). The proviso is that the case must be urgent and the decision must be an interim decision only, a decision that will not prejudice the case itself. Examples are ordering an expert investigation, ordering the hearing of a witness, etc.
f) The judge of attachments
The judge of attachments (juge des saisies/beslagrechter, see Article 1395 of the Judicial Code) deals with all claims concerning preventive attachments (saisies conservatoires/bewarende beslagen), the enforcement of judgments, and measures taken by the Office for Maintenance Claims referred to by the Law of 21 February 2003 establishing an Office for Maintenance Claims within the Federal Public Service for Finance (loi du 21 février 2003 créant un Service des créances alimentaires au sein du SPF Finances/wet van 21 februari 2003 tot oprichting van een Dienst voor alimentatievorderingen bij de FOD Financiën).
g) The juvenile court
The protection of young people is a responsibility of the component communities of the Belgian federal state, but the organisation of the juvenile courts remains a federal matter, and is governed by the federal Youth Protection Law of 8 April 1965 (loi relative à la protection de la jeunesse du 8 avril 1965/wet op de jeugdbescherming van 8 april 1965). The juvenile court (tribunal de la jeunesse/jeugdrechtbank) is a division of the court of first instance that deals with measures to protect young people.
h) The family court
The family court (tribunal de la famille/familierechtbank) has jurisdiction in all family-related disputes. In particular (Article 572 bis of the Judicial Code), it has jurisdiction in:
- disputes between spouses and between legal cohabitants;
- disputes concerning parental authority;
- disputes concerning maintenance obligations;
- disputes relating to matrimonial property arrangements.
The basic principle in the Belgian legal system is that the applicant has freedom of choice. The general practice is provided for in Article 624(1) of the Judicial Code. The applicant generally brings the action before the court of the place where the defendant or one of the defendants has their address (domicile/woonplaats).
What happens if the defendant is not an individual but a legal person? The address of a legal person is the location of its head office (siège/hoofdzetel), i.e. the place from which it is managed.
The applicant is entitled to bring the case before a different court in certain cases. These options are described, in particular, in Article 624(2) to (4) of the Judicial Code. In addition to the court of the place where the defendant or one of the defendants has their address, the applicant can opt for:
It is also settled case-law that in interlocutory proceedings territorial jurisdiction rests with the presiding judge of the place where the judgment is to be enforced.
As regards maintenance payments, Article 626 of the Judicial Code states that claims relating to maintenance connected with the right to social integration assistance can be brought before the court of the address of the applicant (i.e. the family member entitled to maintenance).
These rules, laid down in Articles 624 and 626, are rules that apply in the absence of any provision to the contrary, and the parties are free to deviate from them. Parties can therefore enter into a choice-of-court agreement that provides that any dispute is to be brought only before specified courts at first instance.
There are, however, some exceptions to this basic principle of freedom of choice.
Legislation identifies a number of cases in which the applicant has no choice. These cases are listed mainly in Articles 627 to 629 of the Judicial Code. Examples are:
Even in these cases, there is still some freedom of choice. Article 630 of the Judicial Code states that after a dispute has arisen the parties may agree to deviate from these legal provisions. Any such agreements made before the dispute arose, however, are null and void.
In certain cases, and in particular those described in Articles 631 to 633 of the Judicial Code, one court has exclusive territorial jurisdiction. The applicant then has no choice, and no choice-of-court agreement can be made either before or after the dispute arises. These cases include the following:
As has already been stated above, the rules of Articles 624 and 626 apply in the absence of any provision to the contrary, and the parties are free to deviate from them. Parties can enter into a choice-of-court agreement that provides that any dispute is to be brought only before specified courts at first instance.
In the cases referred to in Articles 627 to 629 of the Judicial Code, no choice-of-court agreement can be made before the dispute arises. However, under Article 630, such agreements are permitted after the dispute arises.
In the cases described in Articles 631 to 633 of the Judicial Code it is not permitted to enter into a choice-of-court agreement.
The answer to this question is contained in the answer to questions 1 and 2.
Relevant articles of the Judicial Code: Federal Public Service for Justice
* Click on Justice de A à Z/Justitie van A tot Z (The A to Z of Justice).
* Select: Cours: compétence/Hoven: bevoegdheid (Courts: jurisdiction).
Help in finding the court with territorial jurisdiction: Federal Public Service for Justice
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