This article is based on a national report that was written for the XVth World Congress of the International Association of Procedural Law that was held in Istanbul in May 2015 and that focused on Effective Judicial Relief and Remedies in an Age of Austerity. It gives a detailed and critical overview of the current and future procedures in Belgium that offer relief in small and simple matters. Before analysing these procedures, it is important to sketch the general judicial context and some of its relevant features: the judicial organisation, the goals of the civil justice system, the course of an ordinary civil lawsuit, the role of the court, and the litigation costs.
In 2014, the Belgian judiciary was reformed.1x See for an analysis B. Allemeersch, P. Taelman, P. Van Orshoven & B. Vanlerberghe (eds.), Nieuwe Justitie (2014) and D. Fries (ed.), Le nouveau paysage judiciaire (2014). See for an analysis in English S. Voet, ‘Belgium’s New Specialized Judiciary’, 4 Russian Law Journal 129 (2014). The most important parts are the reorganisation of the judicial districts, the introduction of judicial mobility, and more independent judicial management.2x Loi du 1 décembre 2013 portant réforme des arrondissements judiciaires et modifiant le Code judiciaire en vue de renforcer la mobilité des membres de l’ordre judiciaire, Moniteur Belge (Official Gazette of Belgium) 10 December 2013, at 97957; loi du 18 février 2014 relative à l’introduction d’une gestion autonome pour l’organisation judiciaire, Moniteur Belge (Official Gazette of Belgium) 4 March 2014, at 18200 and loi du 21 mars 2014 portant modification de la loi du 1 décembre 2013 portant réforme des arrondissements judiciaires et modifiant le Code judiciaire en vue de renforcer la mobilité des membres de l’ordre judiciaire, Moniteur Belge (Official Gazette of Belgium) 24 March 2014, at 23194. See also loi du 8 mai 2014 portant modification et coordination de diverses lois en matière de Justice (I), Moniteur Belge 14 May 2014, at 39086 and loi du 12 mai 2014 portant modification et coordination de diverses lois en matière de Justice (II), Moniteur Belge (Official Gazette of Belgium) 19 May 2014, at 39863. The reform aims to achieve three goals: (i) better judicial management and more efficiency regarding the use of public means, (ii) reducing the judicial backlog, and (iii) more judicial quality and better judicial service through specialisation. A second part concerns a major judicial competence reform. On the one hand, a (specialised) Family and Juvenile Court is created.3x Loi du 30 juillet 2013 portant création d’un tribunal de la famille et de la jeunesse, Moniteur Belge (Official Gazette of Belgium) 27 September 2014, at 68429. See for an analysis K. Devolder, De bevoegdheidsverdeling in familiezaken: voor en na de familierechtbank (2014). On the other hand, some civil and commercial competences are re-allocated so that a dispute is adjudicated by its natural judge.4x Loi du 26 mars 2014 modifiant le Code judiciaire et la loi du 2 août 2002 concernant la lutte contre le retard de paiement dans les transactions commerciales en vue d’attribuer dans diverses matières la compétence au juge naturel, Moniteur Belge (Official Gazette of Belgium) 22 May 2014, at 40635. The goal of this reform is a more efficient administration of justice in family disputes and a speedier and more qualitative adjudication of disputes by the judge who is best suited.
Belgium’s current judicial structure (after the 2014 reforms) can be summarised as follows.5x All courts discussed in this article are federal courts. Although Belgium is a (complicated) federal state composed of three (language) communities and three (economic) regions, the judicial organisation remains a federal competence. The three (language) communities are the Flemish (Dutch-speaking) Community, the French (French-speaking) Community, and the German-speaking Community. The three (economic) regions are the Flemish Region, the Walloon Region, and the Brussels-Capital Region. For a good understanding of the differences between the Flemish and the Walloons, see R. Mnookin and A. Verbeke, ‘Persistent Nonviolent Conflict with No Reconciliation: The Flemish and Walloons in Belgium’, 72 Law & Contemporary Problems 151 (2009). There are five first instance courts: Justices of the Peace, Police Courts, Courts of First Instance, Commercial Courts, and Labour Courts. In the context of this article, the Justice of the Peace is the most important one. It has general jurisdiction over all claims that do not exceed € 2.5006x Art. 590 Belgian Judicial Code. and specific jurisdiction over, among others, landlord-tenant cases irrespective of the value of the claim.7x Art. 591 Belgian Judicial Code. It is regarded as a small claims court and an easily accessible court, in the sense that a petition can be used to bring a claim (instead of a more formal and expensive writ of summons) and pro se litigants are common and allowed. In each of the 187 judicial cantons, there is a Justice of the Peace.
Since 2014, there are twelve judicial districts.8x These are East Flanders, West Flanders, Antwerp, Limburg, Leuven, Brabant wallon, Brussels, Namur, Liège, Hainaut, Luxembourg, and Eupen. Every district encompasses a Court of First Instance and a Police Court. The Police Court has civil and criminal jurisdiction in relation to traffic accidents, irrespective of the value of the claim.9x Art. 601bis Belgian Judicial Code. The Court of First Instance consists of four sections:10x Art. 76 Belgian Judicial Code. the Civil Court deals with civil cases, the Criminal Court handles criminal cases, and the Family and Juvenile Court has jurisdiction over family and juvenile cases. In some Courts of First Instance, there is a fourth division having jurisdiction over the enforcement of criminal penalties (e.g. regarding parole issues). The President of the Court of First Instance can give preliminary rulings. Every Court of First Instance has one or more Judges of Seizure who deal with the enforcement of orders and pre-trial attachments. In each of the five judicial areas,11x These are Antwerp, Brussels, Ghent, Liège, and Mons. there is a Commercial Court and a Labour Court. The Commercial Court has jurisdiction to adjudicate all disputes between businesses, more particularly between all persons durably pursuing an economic goal, regarding an action that was performed in the context of the realisation of that goal.12x Art. 573 Belgian Judicial Code. This means that the Commercial Court has general jurisdiction over all (internal and external) business and corporation disputes, irrespective of the value of the claim. Finally, the Labour Court has jurisdiction with regard to matters of labour law as well as social security law.13x Art. 578 Belgian Judicial Code.
Appeals against decisions of the Justice of the Peace and civil decisions of the Police Court are brought before the Civil Court in the Court of First Instance.14x Art. 577 Belgian Judicial Code. An appeal is only possible when the claim exceeds € 1.860.15x Art. 617 Belgian Judicial Code. Appeals against criminal decisions of the Police Court are brought before the Criminal Court. The Court of Appeal has jurisdiction to hear appeals against judgements of the Court of First Instance or the Commercial Court.16x Art. 602 Belgian Judicial Code. An appeal is only possible when the (civil) claim exceeds € 2.500.17x Art. 617 Belgian Judicial Code. There is one Court of Appeal in each of the five judicial areas. The Court of Appeal is subdivided into civil, criminal, and family and juvenile courtrooms.18x Art. 101, §1 Belgian Judicial Code. The Labour Court of Appeal hears appeals against judgements of the Labour Courts.19x Art. 607 Belgian Judicial Code. All decisions of the Labour Court can be appealed, irrespective of the value of the claim.20x Art. 617 Belgian Judicial Code.
Finally, on top of the ladder, there is the Court of Cassation, Belgium’s Supreme Court. There is only one Court of Cassation. It is located in Brussels. There are three courtrooms: one handling civil cases, one dealing with criminal cases, and one handling social cases. Each courtroom consists of a Dutch-speaking and a French-speaking department. The Court of Cassation deals with appeals against judgements rendered in last instance.21x Art. 608 Belgian Judicial Code. E.g. an appellate decision of the Court of Appeal or a decision of the Justice of the Peace or the Police Court involving a claim less than € 1.860. The review of the Court of Cassation is of a limited nature. It does not decide the merits of the case but merely examines whether procedural rules and rules of substantive law were complied with. The Court can reject the appeal against the challenged decision, or it can quash that decision. In the latter case, the Court will refer the case to a court of the same level as that which rendered the quashed decision in order to obtain a new decision on the merits.
1.2 Goals of the Civil Justice System22x See C.H. van Rhee, ‘Dutch National Report with Some Additional Information on Belgium and France’, in D. Maleshin (ed.), Civil Procedure in Cross-cultural Dialogue: Eurasia Context: IAPL Word Conference on Civil Procedure, September 18-21, 2012, Moscow, Russia (2012) 196.
There is no general consensus on the goals of civil justice in Belgium. Its main goal is the authoritative determination and enforcement of rights recognised by substantive law. Civil litigation is commenced when someone violates or refuses to respect the substantive rights of someone else. The outcome of the litigation leads to an enforceable title. Belgian civil procedure offers the framework within which this process unfolds. It regulates which court has jurisdiction, how a civil lawsuit is conducted, and how a judicial decision can be enforced.
Belgian civil justice serves two additional public goals that are not in the direct interest of the litigating parties. Firstly, the demonstration of the effectiveness of private law and the court system. Civil litigation demonstrates the consequences when one does not act in accordance with one’s civil obligations. It therefore has a deterrent effect and a preventive effect, in the sense that further litigation can be prevented since many of the legal issues may be resolved on the basis of previous case law without the need of bringing a new case. According to Allemeersch, not only the effectiveness of private law is at stake in Belgium but also the effectiveness of the court system as a whole. In each individual case, Belgian judges are at least implicitly trying to demonstrate that in the long run the system is an effective system. This also means that the length of the proceedings is not an issue to be determined by the parties. The judge may even disallow delays that are mutually requested by both of the parties.23x Ibid., at 196 and the quote of B. Allemeersch in note 4.
Secondly, there is the development of law and guaranteeing its uniform application. Although Belgian law has no binding precedents,24x Art. 6 Belgian Judicial Code. it is clear that judicial decisions are an important source of law, albeit always submitted to legislation as the primary source of law. Especially decisions of higher courts, in particular the Court of Cassation, are considered authoritative. Lower courts can rely on these decisions to give reasons for their own decisions. All of this enhances the development of the law and its uniform application.
1.3 Course of an Ordinary Civil Lawsuit25x For a summary in English, see P. Lefebvre, ‘Belgium’, in S.R. Grubbs (ed.), International Civil Procedure (2003) 75.
Belgian civil procedure rules are laid down in the 1967 Belgian Judicial Code, which replaced the French Code de procédure civile of 1806.26x See P. Van Orshoven, ‘The Belgian Judicial Code (1967)’, in C.H. van Rhee (ed.), European Traditions in Civil Procedure (2005) 97 and C.H. van Rhee, D. Heirbaut & M. Storme (eds.), The French Code of Civil Procedure (1806) after 200 Years. The Civil Procedure Tradition in France and Abroad (2008). Belgian civil procedure therefore belongs to the French legal tradition. The goal of the 1967 Code was to introduce a less laborious, a faster, and a less expensive kind of litigation.
The basic rules can be summarised as follows. As a rule, proceedings are initiated by serving a writ of summons,27x Art. 700 Belgian Judicial Code. which is an official document that is served on the defendant by a bailiff. They can also be initiated by filing a petition,28x Arts. 1034bis-1034sexies Belgian Judicial Code. This is a written request directly addressed to the court by the plaintiff. The clerk of the court notifies it to the defendant. Apart from its form, the petition has the same legal effects as the writ of summons: it commences adversary proceedings between the parties. but only when the law allows it, or by voluntary appearance of the parties before the court.29x Art. 706 Belgian Judicial Code. As soon as a docket fee has been paid, the clerk of the court registers the case on the civil docket of the court. In order to prepare his defence, the defendant should have a minimum period of 8 days between the day the writ of summons or the petition is served and the day the preliminary hearing takes place.30x Art. 707 Belgian Judicial Code.
At the preliminary hearing, the parties or their counsel must appear in person.31x Art. 728, §1 Belgian Judicial Code. Only counsels have the opportunity to agree upon a written appearance replacing the personal appearance (Art. 719 Belgian Judicial Code). Legal entities are represented by their legally empowered representatives. Before the Justice of the Peace, the Commercial Court, and the Labour Court, the parties can be represented by a spouse or by a family member as long as the representative holds a proxy and the court allows the representation.32x Art. 728, §2 Belgian Judicial Code. In tax cases, the court can allow the parties to be assisted (not represented) by an accountant, a bookkeeper, or an auditor.33x Art. 728, §2bis Belgian Judicial Code. Before the Labour Court, the parties have the right to be represented by a union representative.34x Art. 728, §3 Belgian Judicial Code. In some labour disputes between an individual and a Public Centre for Social Welfare (PCSW), some particular rules apply.35x Ibid. These disputes have to do with subsistence minimum and social welfare/services provided by PCSWs. The individual can be represented or assisted by a representative from a non-profit organisation or association (e.g. a poverty association). The PCSW can be represented by a lawyer or a staff member.
The preliminary hearing deals with two categories of cases: cases that only require short hearings36x Art. 735 Belgian Judicial Code. These cases are pleaded at the preliminary hearing. or the more complex cases that are referred to the docket in order to be allocated in a later stage to a pleading room of the court. When one of the parties does not appear, the other party can claim a default judgement.37x Arts. 802-806 Belgian Judicial Code. When none of the parties appear, the judge cannot deal with the case and refers it to the docket.
In the complex cases that are referred to the docket, the parties exchange briefs (or written pleadings). These are written documents containing the claims and the defenses of the parties. The original pleadings are filed with the court’s clerk by mail or through personal delivery (to date, this cannot be done electronically …).38x Art. 742 Belgian Judicial Code. Simultaneously, a copy of the pleadings is sent to the adversary party.39x Art. 740 Belgian Judicial Code. Normally, the parties themselves have to agree on a procedural calendar in which case the judge of the introductory courtroom ratifies this at the preliminary hearing.40x Art. 747, §1 Belgian Judicial Code. If the parties do not agree on a procedural calendar, the judge imposes one, including a trial date.41x Art. 747, §2 Belgian Judicial Code. Once a calendar is determined, the parties have to respect the deadlines. The court disregards pleadings that are filed after the expiration of the deadlines.42x Art. 748, §1 Belgian Judicial Code.
At the trial, the parties plead their case orally. Lawyers do most of the talking. However, the parties can plead in person unless the court forbids it for reasons of improper or unclear use of language.43x Art. 758 Belgian Judicial Code. Although the oral pleadings are important because they give the court a first impression of the case, their importance should not be exaggerated since the court does not have to answer to arguments that are raised during the oral pleadings. As a rule, the parties are not supposed to raise arguments not included in their briefs.44x Art. 756bis Belgian Judicial Code.
The court takes the case in deliberation after the closing of the hearings. Within 1 month, it has to render a judgement.45x Art. 770 Belgian Judicial Code. When this term is exceeded, the judge informs his hierarchical superior. If he does not render judgement within 6 months, the case can be withdrawn from him. If the court is composed of three judges, it reaches a decision by majority vote. There are no dissenting opinions.
One of the basic principles of Belgian civil procedure is that the parties autonomously set the limits of the dispute.46x For a thorough analysis, see B. Allemeersch, Taakverdeling in het burgerlijk proces (2007). They decide (i) if proceedings are initiated, (ii) who will be the parties and (iii) the cause and the object of the claims.47x The causes of the claim are the underlying (legal) facts. The plaintiff has to determine these facts (Art. 702, 3° Belgian Judicial Code). The object of the claim is what is claimed by the parties, the advantage they want to obtain. Within this framework, the court decides the case. For example, it is not allowed for the court to involve ex officio other parties in the proceedings than the ones designated by the plaintiff and the defendant.48x Art. 811 Belgian Judicial Code. Another example is that the court cannot grant a claim that was not expressed, nor can it grant more than what was claimed.49x Art. 1138, 2° Belgian Judicial Code.
The question arises what the role of the court is. First, the court plays an active role with respect to the procedure. It sees to the orderly evolution of the proceedings, meaning that the procedural rules should be respected and that a judgement should be rendered within a reasonable time. Second, in case the parties do not succeed in producing sufficient evidence, the court is obliged to order a complementary inquiry consisting of, for example, the submission of certain documents, witness depositions, an official visit to the scene of the facts, the personal appearance of the parties in court, etc.50x For an overview of Belgian evidence law, see B. Cattoir, Burgerlijk bewijsrecht (2013). Third and finally, the court can ex officio complete and/or substitute the legal grounds that the parties have invoked. In other words, the court is obliged to examine the judicial character of the facts irrespective of their qualification by the parties.51x See the Roman adage da mihi factum, dabo tibi ius. However, the following conditions apply: (i) the court cannot raise a dispute that not has been raised by the parties, (ii) the court can only rely on facts or documents properly submitted to the court, (iii) the court cannot change/modify the cause and the object of the claims, and finally (iv) the court has to respect the rights of defence. The latter means that the court has to give both parties the opportunity to give their point of view.52x The court can even reopen the debates (Art. 774 Belgian Judicial Code).
1.5 Litigation Costs53x See V. Sagaert and I. Samoy, ‘Belgium’, in Ch. Hodges, S. Vogenauer & M. Tulibacka (eds.), The Costs and Funding of Civil Litigation (2010) 217 and V. Sagaert and I. Samoy, ‘Cost and Fee Allocation in Civil Procedure’, in E. Dirix and Y.-H. Leleu (eds.), The Belgian Reports at the Congress of Washington of the International Academy of Comparative Law (2011) 279.
The provisions on litigation costs are laid down in the Belgian Judicial Code.54x Arts. 1017-1024 Belgian Judicial Code. The basic principle is that these costs are born by the party who loses the case.55x Art. 1017 Belgian Judicial Code. These litigation costs are:56x Art. 1018 Belgian Judicial Code.
(in case of judicial mediation) the fees, emoluments, and costs of a mediator.
The most important court fees are the docket fees: the sum of money charged by a court for placing a case on its docket. These costs differ depending on the court before which the case is brought and on the value of the claim. These fees were raised in 2015 (Table 1).
Particular attention should be paid to the expenses of the judicial proceedings as stated in Article 1022 Belgian Judicial Code. This article, which was amended in 2007, introduced the partial recoverability of lawyers’ fees. The expenses of the judicial proceedings are defined as a fixed compensation (or lump sum)57x This means that the actual expenses and fees are not recoverable, but only a part of it. for the expenses and the fees of the lawyer58x This means that the winning party has to be represented by a lawyer. Pro se litigants or litigants being represented by a non-lawyer have no right to compensation. of the winning party. The amount depends on the value of the claim. There is a basic amount, a minimum amount, and a maximum amount (Table 2).
At the request of the parties, the court can decrease or increase the basic amount, without exceeding the minimum or maximum amount. The following criteria can be used to do so: the financial capacity of the parties (only to decrease the amount), the complexity of the case, the contractually agreed compensation for the winning party, and (and this is a catch-all provision) whether the litigation is manifestly unreasonable.
Finally, it should be underlined that in ex parte (or unilateral) proceedings (e.g. the summary order for payment procedure, which is discussed hereafter), the plaintiff always has to pay his own expenses. In these cases, no compensation ex Article 1022 Belgian Judicial Code can be claimed.
Civil proceedings can be funded through legal aid.59x See B. Hubeau and A. Terlouw, Legal Aid in the Low Countries (2014). The Belgian Constitution guarantees everyone the right to legal aid.60x Art. 23 Belgian Constitution. This can take the form of an exemption from paying litigation costs,61x Arts. 664-699ter Belgian Judicial Code. One has to show that the claim seems legitimate and that his or her income is insufficient. A request must be submitted to the office of the court before which a judicial procedure would be initiated. or judicial assistance.62x Arts. 508/1-508/25 Belgian Judicial Code. Regarding the latter, a distinction is made. First-line judicial assistance means the offering of a free and first legal advice, including the referral to a specialised body or organisation (e.g. a lawyer or a tenants’ organisation). Second-line judicial assistance means the free assistance of a lawyer in the form of an elaborate legal advice, legal assistance, or legal representation. The lawyer, who is appointed by the local bar, is paid by the State.
It is also possible to fund civil litigation through legal expenses insurance. Under certain conditions, one can get a tax advantage if such an insurance is taken. The aim is to encourage people to take an insurance and to enhance access to justice.63x Sagaert and Samoy (2010), above n. 53, at 224.
* Art. 269 Belgian Code of Registration Duties.
The Belgian Judicial Code currently contains one explicit procedure to obtain relief in small and simple matters: the summary order for payment procedure, which is discussed hereafter. There are no other particular procedures. As mentioned earlier,64x See supra Section 1.1. the Justice of the Peace has general jurisdiction over all claims that do not exceed € 2.500. It is regarded as a small claims court. However, there are no specific procedural rules. The general rules as discussed earlier apply.65x See supra Section 1.3.
The presidents of the Court of First Instance, the Commercial Court, and the Labour Court have jurisdiction in summary proceedings.66x Art. 584 Belgian Judicial Code. There are two basic conditions. On the one hand, the case has to be urgent. According to the Belgian Court of Cassation, this will be the case if an immediate decision is desirable to prevent (further) harm or serious discomfort. On the other hand, the President can only order provisional or protective measures,67x E.g., the appointment of a court expert, ordering the testimony of a witness, ordering a publication ban, ordering a party to do something or to stop something to do, ordering an injunction, etc. which means that he cannot rule on the merits of the case.68x Art. 1039 Belgian Judicial Code. The court that has to decide on the merits of the case is not bound by a summary order. Again, the general procedural rules apply, although there are some exceptions.69x E.g. in normal proceedings, there have to be at least 8 days between the serving of the writ of summons or the petition and the preliminary hearing (see supra Section 1.3). In summary proceedings, this term is 2 days.
Furthermore, a court-annexed conciliation procedure exists.70x See P. Taelman and S. Voet, ‘Mediation in Belgium: A Long and Winding Road’, in C. Esplugues and L. Marquis (eds.), New Developments in Civil and Commercial Mediation – Global Comparative Perspectives (2015) forthcoming. Before bringing a claim, each party, or both parties, can submit the dispute to the court exclusively with the view of obtaining a settlement.71x Art. 731 Belgian Judicial Code. See also Art. 3(a) of the Directive of the European Parliament and of the Council 2008/52 on certain aspects of mediation in civil and commercial matters, OJ 2008 L 136/3. This is called a voluntary preliminary court-annexed conciliation procedure, in which the court tries to achieve a settlement by assisting the parties towards an agreement. The court does not have the power to adjudicate the dispute if conciliation fails. Sometimes, this process is mandatory,72x Art. 734 Belgian Judicial Code. The article stipulates that the conciliation attempt has to be mentioned in the judicial decision. for example, in labour cases. The (voluntary) procedure is of an informal nature. The parties can simply write a letter to the clerk of the court asking to summon the opposite party. The court will draft a procès-verbal of the conciliation session. If a settlement is reached, this procès-verbal is enforceable as a judgement.73x Art. 733 Belgian Judicial Code. Under no circumstances, the settlement can be appealed. In case no settlement is reached, the court will draft a procès-verbal of non-settlement, in which case judicial proceedings have to be initiated. Conciliation is to be distinguished from mediation. While a conciliator (in most cases a judge) indirectly recommends a solution, a mediator (who is not a judge) does not give any advice about the resolution of the dispute. The mediator only assists the parties in working towards a self-negotiated settlement.
Finally, there are the European small claims procedure74x Regulation of the European Parliament and of the Council 861/2007 establishing a European Small Claims Procedure, OJ 2007 L 199/1. and the European order for payment procedure.75x Regulation of the European Parliament and of the Council 1896/2006 creating a European order for payment procedure, OJ 2006 L 399/1. Although both instruments are directly applicable in Belgium, they are far from successful. Their complementarity with the Belgian summary order for payment procedure is discussed hereafter.
* Royal Decree of 26 October 2007. A different table, with substantially lower amounts, exists for proceedings before the Labour Courts and the Labour Courts of Appeal.
2.2 Summary Order for Payment Procedure76x Arts. 1338-1344 Belgian Judicial Code. For an analysis, see J. Bette, ‘Un mode de récupération de créance simple, rapide et peu onéreux: la procédure sommaire d’injonction de payer’, Cahier du Juriste 8 (1996); A. Doudelet, ‘Summiere rechtspleging om betaling te bevelen’, Rechtskundig Weekblad 505 (1971); G. Closset-Marchal, ‘La procédure sommaire d’injonction de payer: un nouvel essor?’, Tijdschrift voor Vrederechters 35 (1988); L. Samyn, ‘De uitdagingen van het Europees (internationaal) procesrecht voor het Belgisch procesrecht’ (doctoral thesis on file at the UA, Antwerp); A. Vareman, ‘Summiere rechtspleging en territoriale bevoegdheid’, Rechtskundig Weekblad 201 (1995-1996); A. Vareman, ‘Art. 1338 Ger.W. – Art. 1344 Ger.W.’, in Gerechtelijk recht. Artikelsgewijze commentaar met overzicht van rechtspraak en rechtsleer (1996) (looseleaf); X., ‘Les procédures européenne et belge de règlement simplifié des litiges pécuniaires’, 1 Ius & Actores 5 (2009). For a summary in English, see G. Van Mellaert, ‘Order for Payment Under Belgian Law’, in W. Rechberger and G. Kodek (eds.), Orders for Payment in the European Union (2001) 91. See also <https://e-justice.europa.eu/content_order_for_payment_procedures-41-be-maximizeMS_EJN-en.do?member=1> (last visited 29 June 2015).
The summary order for payment procedure was introduced in 1967, at the same time of the enactment of the Belgian Judicial Code.77x The procedure was amended in 1987. It served two goals: introducing a quick and simple ex parte procedure for the collection of small claims and eliminating the possibility for a debtor to delay payment by way of abusive and frivolous arguments.78x Van Mellaert, above n. 76, at 91. The procedure consists of two parts: a prior demand for payment and the actual summary order for payment procedure.
The procedure, which is entirely voluntary, only applies to claims falling under the jurisdiction of the Justice of the Peace, the Police Court, or the Commercial Court. The claim must relate to an established debt of an amount not exceeding € 1.860.79x Only pecuniary claims are eligible. The amount must be certain, be fixed, and have fallen due.80x Van Mellaert, above n. 76, at 92 (underlying that a creditor may not artificially split up his claim in several parts in order to benefit from the procedure). According to the Justice of the Peace of Roeselare, an established debt is a debt that is prima facie not disputable. Any appearance (or doubt) about the disputable character should lead to a rejection of the claim.81x Justice of the Peace of Roeselare, 7 November 1996, Rechtskundig Weekblad 192 (1997-1998). If only a part of the claim relates to an established debt, the procedure cannot be used.82x Justice of the Peace of Borgerhout, 28 December 1970, Rechtskundig Weekblad 1895 (1971-1972).
For claims falling under the jurisdiction of the Commercial Court, the condition that the claim must relate to an established debt of an amount not exceeding € 1.860 has been abolished in 2014.83x Art. 9 Loi du 26 mars 2014 modifiant le Code judiciaire et la loi du 2 août 2002 concernant la lutte contre le retard de paiement dans les transactions commerciales en vue d’attribuer dans diverses matières la compétence au juge naturel, Moniteur Belge (Official Gazette of Belgium) 22 May 2014, at 40635 and Art. 32 Loi du 19 décembre 2014 portant des dispositions diverses en matière de Justice (1), Moniteur Belge (Official Gazette of Belgium) 29 December 2014, at 106446. The goal is to make the procedure more attractive for business disputes irrespective of the value of the claim, since the financial threshold is regarded as an impediment.
On the other hand, the claim must be substantiated by a written document drawn up by the debtor. This does not have to be an admission or acknowledgement of debt.84x Art. 1338 Belgian Judicial Code. Originally, the claim had to be proven by a deed from the debtor. This condition was dropped by the 1987 legislative amendments. This condition is usually broadly interpreted: an ordering slip,85x Contra: Justice of the Peace of Fexhe-Slins, 26 March 1981, Jurisprudence de Liège 175 (1981). a receipt of delivery signed by the debtor or an accepted invoice86x Van Mellaert, above n. 76, at 92. all have been accepted as a written document from the debtor. Most case law requires a document that is (explicitly) signed or accepted by the debtor and that directly relates to the product or service that has been bought. Have not been accepted as a written document from the debtor: a simple (not explicitly accepted) invoice87x Justice of the Peace of Ostend, 28 November 1997, TWVR 1998, 44 and Justice of the Peace of Fexhe-Slins, 26 March 1981, Jurisprudence de Liège 175 (1981) . or a financing/rental/insurance contract.88x Justice of the Peace of Wezet, 29 June 1987, Jurisprudence de Liège 1011 (1987) .
Finally, the procedure only applies when the debtor has his domicile or habitual residence in Belgium.89x Art. 1344 Belgian Judicial Code.
There is no standard form that has to be used to initiate the procedure. The Belgian Judicial Code only lays down a number of conditions regarding the information that has to be stated in the prior demand for payment and in the petition initiating the procedure.
Before initiating the procedure, the creditor/plaintiff must send the debtor a final demand for payment.90x Art. 1339 Belgian Judicial Code. This formal notice may take the form either of a bailiff’s writ that is served upon the debtor or of a registered letter (with proof of reception). A writ is more expensive than a registered letter. However, a writ offers more certainty regarding the reception by the debtor.
a reproduction of the relevant articles of the Belgian Judicial Code regarding the summary order for payment procedure;91x If this is forgotten, the claim introducing a summary order for payment procedure will be declared inadmissible (Justice of the Peace of Roeselare, 12 April 1994, Tijdschrift voor Vrederechters 392 (1994)).
the court that will handle the claim in case the debtor refuses to pay.
A failure to include this information renders the demand null and void.
the object of the claim94x See supra Section 1.4. and a detailed statement of the amount being claimed, including a detailed overview of the different parts of the claim and the legal grounds on which the claim is based;95x The claim should correspond with the claim as formulated in the prior demand for payment (Justice of the Peace of Bastenaken, 5 February 1971, Jurisprudence de Liège 207 (1970-1971)).
the signature of the plaintiff’s lawyer.
The last condition means that the plaintiff must use a lawyer to initiate the procedure. He or she cannot act pro se.
At the discretion of the plaintiff, he or she may also indicate the reasons why he or she opposes the granting of a deferment of payment.
Finally, the petition must be accompanied by a photocopy of the written document drawn up by the debtor or a copy of the bailiff’s writ or a copy of the registered letter or the original letter, accompanied by evidence that the recipient refused the letter or failed to collect it from the post office, together with a declaration stating that the debtor is registered at the address listed in the civil register. It is sufficient that the plaintiff shows that all has been done to notify the debtor. He or she does not have to prove that the debtor effectively received the demand for payment.96x Van Mellaert, above n. 76, at 94.
The petition is submitted to the clerk of the court who registers the claim.97x Art. 1341 Belgian Judicial Code. The procedure is of a unilateral or ex parte nature. The debtor does not receive a copy of the petition. It is not possible for the debtor to voluntarily intervene in the procedure.98x Justice of the Peace of Herne, 16 February 1983, Tijdschrift voor Vrederechters 211 (1983).
Within 15 days of the date on which the application is submitted, the court grants or rejects the claim.99x Art. 1342 Belgian Judicial Code. Rejection is possible either on the merits or because the forms were not respected. The court may grant a deferment of payment or partially uphold the claim. A copy of the decision is sent to the plaintiff’s lawyer.
When the court upholds the claim either wholly or in part, the decision has the same effect as a default judgement.100x Art. 1343, §1 Belgian Judicial Code. Therefore, one of the basic rules regarding default judgements applies: the decision granting the summary order for payment must be served on the debtor within 1 year, otherwise it will be deemed to be non-existent.101x Art. 806 Belgian Judicial Code.
The memorandum of service has to contain the following information:102x Art. 1343, §2 Belgian Judicial Code.
a warning that if the debtor does not act by the stated deadline, all available legal remedies may be used by the creditor/plaintiff in order to require the debtor to pay; a failure to include such a warning renders the memorandum of service null and void.
The decision is not provisionally enforceable.103x Art. 1399 Belgian Judicial Code. Therefore, the enforcement of the decision is suspended during the period in which an opposition may be submitted or an appeal lodged. However, the decision may be used as grounds for precautionary attachment of property.104x Art. 1414 Belgian Judicial Code.
In case the plaintiff’s claim is (partially) rejected, he or she cannot appeal the decision. He or she has to initiate an ordinary contradictory civil lawsuit according to the general rules of civil procedure.105x Art. 1343, §4 Belgian Judicial Code.
The debtor can oppose the decision in two ways: by lodging an appeal106x In practice, this will be impossible. According to Art. 617 Belgian Judicial Code, an appeal against a decision of the Justice of the Peace or the Police Court is only possible when the claim exceeds € 1.860. An appeal against a decision of the Commercial Court is only possible when the claim exceeds € 2.500. The summary order of payment procedure only applies to claims lower than € 1.860 … or by submitting an opposition.107x Art. 1343, §3 Belgian Judicial Code. In both cases, the deadline is 1 month, commencing from the date on which the judgement is served.108x Arts. 1048 and 1051 Belgian Judicial Code. The normal rules on appeal and opposition apply, subject to one exception: the opposition may be lodged in the form of a petition.109x Art. 1047 Belgian Judicial Code requires a bailiff’s writ to be served. The petition has to contain the following information:110x Failure to do so renders the petition null and void.
the grounds relied upon by the opposing party.
The Belgian summary order for payment procedure is not a successful procedure, as is illustrated in Tables 3 and 4. Table 3 shows that, in average, no more than 0.3% of all new (petition) cases that were brought before the Justices of the Peace between 2009 and 2013 are summary order for payment procedures. Table 4 illustrates that the ordinary default procedure is much more successful than the summary order for payment procedure.
* <http://justitie.belgium.be/nl/informatie/statistieken/hoven_en_rechtbanken> (last visited 29 June 2015). There are no available data about the number of summary order for payment procedures before the Police Courts. Only since 2014, it is possible to bring this procedure before the Commercial Court.
The entire procedure is criticised:111x A. Berthe, ‘L’injonction de payer en droit belge – Aspects de lege lata et de lege ferenda’, 1 Ius & Actores 67 (2009); Closset-Marchal, above n. 76 and G. De Leval, ‘La procédure sommaire d’injonction de payer et l’espace européen’, in La procédure sommaire d’injonction de payer et l’espace européen, 3 Actualités du droit: revue de la Faculté de droit de Liège 399 (2003). its limitation to claims not exceeding € 1.860 (with the exception of claims falling under the jurisdiction of the Commercial Court), the condition of a written document drawn up by the debtor, the fact that a prior demand for payment must be sent to the debtor, the impossibility to obtain a decision that is provisionally enforceable, and particularly the mandatory assistance of a lawyer. All these elements lead to the conclusion that the Belgian summary order for payment procedure is a burdensome, inefficient, costly, and not frequently used procedure for creditors to obtain relief in small and simple matters. According to Closset-Marchal, the psychological perception about this ex parte procedure is also a fundamental reason for its failure. From the beginning and because of its unilateral and concise character, the Justices of the Peace paid extra attention to the rights of the unfortunate and weak debtor, thereby undermining the goals of the procedure.112x Closset-Marchal, above n. 76, at 38-40. It is therefore no surprise that the 2002 Green Paper concludes that ‘due to some structural defects (e.g. the payment order has to be preceded by a formal notice), the procédure sommaire d’injonction de payer procedure has turned out to be more cumbersome than ordinary civil proceedings and has, therefore, not met broad acceptance among legal practitioners’.113x Green Paper on a European order for payment procedure and on measures to simplify and speed up small claims litigation, COM (2002) 746 final, at 9.
In the course of the years, many proposals were launched to amend the summary order for payment procedure.114x These are analysed in detail by Samyn, above n. 76, at 217-27. Particular attention should be paid to the proposals made after the introduction of the European order for payment procedure. In August 2007, a legislative proposal was submitted to the Belgian Senate.115x Projet de loi introduisant l’injonction de payer dans le Code judiciaire, 10 August 2007, No. 4-139/1, <www.senate.be> (last visited 29 June 2015). In March 2008, some amendments were proposed in order to harmonise this proposal with the new European procedure.116x Projet de loi introduisant l’injonction de payer dans le Code judiciaire. Amendements, 18 March 2008, No. 4-139/2, <www.senate.be> (last visited 29 June 2015). For example, it was suggested to adjust the scope of application of the Belgian summary order for payment procedure to its European counterpart. The same was suggested regarding the role of the court and the term within which the court has to render a decision. In June 2008, the amended proposal was accepted by the Justice Commission of the Senate117x Projet de loi introduisant l’injonction de payer dans le Code judiciaire. Texte adopté par la commission, 24 June 2008, No. 4-139/8, <www.senate.be> (last visited 29 June 2015). and later by the Senate itself.118x Projet de loi introduisant l’injonction de payer dans le Code judiciaire. Texte adopté en séance plénière et transmis à la Chambre, 26 June 2008, No. 4-139/9, <www.senate.be> (last visited 29 June 2015). In the Belgian House of Representative, a series of new amendments was suggested,119x Projet de loi introduisant l’injonction de payer dans le Code judiciaire. Amendements, 21 January 2009, No. 52K1287/003, <www.lachambre.be> (last visited 29 June 2015). which was followed by an elaborate report by the Justice Commission.120x Projet de loi introduisant l’injonction de payer dans le Code judiciaire. Rapport fait au nom de la commission, 9 March 2009, No. 52K1287/006, <www.lachambre.be> (last visited 29 June 2015). The discussion in the House revolved around suggestions to depart from the European procedure, for example, by excluding the consumer/debtor from the Belgian summary order for payment procedure. In May 2009, the Belgian Council of State gave an advice about the proposal.121x Projet de loi introduisant l’injonction de payer dans le Code judiciaire. Avis du Conseil d’Etat, 8 May 2009, No. 52K1287/009, <www.lachambre.be> (last visited 29 June 2015). Its main concern was the lack of coherence between the Belgian and the European procedures. It concluded that a constitutional problem could emerge when the national procedure is more complicated, less efficient, and more expensive than the European transnational procedure. In May 2010, and because of the end of the legislature, the legislative proposal was dropped.122x However, in September 2010, the proposal was re-submitted to the Senate: Proposition de loi modifiant les articles 587, 589 et 628 du Code judiciaire en vue de l’introduction de l’injonction de payer dans le Code judiciaire, 2 September 2010, No. 5-59/1, <www.senate.be> (last visited 29 June 2015). This proposal was dropped in September 2014 because of the end of the legislature.
In March 2014, the Belgian government submitted a proposal to the House.123x Projet de loi modifiant la procédure sommaire d’injonction de payer, 31 March 2014, No. 53K3512/001, <www.lachambre.be> (last visited 29 June 2015). The proposal was largely based on an advice of the Belgian High Council of Justice of 26 January 2011 (see <www.csj.be/fr/content/avis-doffice-sur-lapplication-de-linjonction-de-payer-europeenne> (last visited 29 June 2015)). The proposal first of all wanted to transpose Article 10 of the 2011 Directive on Late Payments into national law.124x Directive of the European Parliament and of the Council 2011/7 on combating late payment in commercial transactions (recast), OJ 2011 L 48/1. According to this provision, the Member States must ensure that an enforceable title can be obtained, including through an expedited procedure and irrespective of the amount of the debt, normally within 90 calendar days of the lodging of the creditor’s action or application at the court or other competent authority, provided that the debt or aspects of the procedure are not disputed. The proposal also aimed at harmonising the Belgian procedure with its European counterpart. Finally, the proposal wanted to introduce a preliminary, mandatory, and contradictory conciliation phase before the actual summary order for payment procedure. It wanted to maintain the prior demand for payment. Because of the end of the legislature, this proposal was also dropped in April 2014.
According to Samyn, Belgian policy makers merely strive for an amelioration of the Belgian summary order for payment procedure. This is done very inconsistently: an advantage for one is a disadvantage for the other. Moreover, these proposals ignore the European context, in the sense that the European order for payment procedure, that is directly applicable in Belgium, requires a 'mirror procedure' in national law. Only this avoids an inequality between foreign and national creditors. The latter are disadvantaged vis-à-vis the former, because they do not have an efficient procedure at their disposal.125x Samyn, above n. 76, at 226-27.
In his 2015 Justice Plan, the new minister of Justice Koen Geens announced a reform of the summary order for payment procedure. The goal is to make it more efficient.126x <http://www.koengeens.be/justitieplan> (last visited 29 June 2015). At the end of June 2015, the government submitted a legislative proposal to the House of Representatives to amend a series of civil procedural rules.127x Projet de loi modifiant le droit de la procédure civile et portant des dispositions diverses en matière de justice, 30 June 2015, No. 54K1219/001, <www.lachambre.be> (last visited 1 July 2015). Part of this proposal deals with the recovery of unchallenged claims and the introduction of a new simplified recovery procedure. However, the existing summary order for payment procedure (as discussed above) remains in force and will not be amended. The same is true for the European order for payment procedure, although the government predicts that the new (and more efficient) national procedure will also be used for cross-border cases. It has to be underlined that to date (July 2015) this is just a proposal. The legislative process still has to play out.
On the one hand, reference is made, once again, to Article 10 of the 2011 Directive on Late Payments. On the other hand, and as already mentioned above,128x See supra Section 2.2.5. it is noted that the current summary order for payment procedure does not meet its goals. There are very few cases, and compared to an ordinary civil procedure, it is not really a summary procedure, as the description above illustrates. The government also refers to the overload these cases cause for judges who are simply used to issue an enforceable title. This is not part of their core task, namely adjudicating disputes. Therefore, the government wants to introduce an administrative recovery procedure, instead of a jurisdictional procedure (which the summary order for payment procedure is). The recovery of unchallenged claims should, in a first phase, be kept outside the courts. In order to surround this procedure with guarantees regarding expertise and independence, a key role will be played by bailiffs (huissiers de justice) and the Belgian National Chamber of Bailiffs.
The proposed recovery procedure for unchallenged claims is composed of four steps.
In the first step, the bailiff sends an order to pay to the debtor with a copy of the relevant pieces of evidence (showing the unchallenged nature of the claim) and an answer form.129x This is comparable to the prior demand for payment in the summary order for payment procedure (see supra Section 2.2.2). The order has to contain, among others, a clear description of the claim and the amounts that are being claimed from the debtor, a summons to pay within 1 month and the modalities to pay.
In the second step, the debtor has 1 month to pay or to ask for payment facilities or to challenge the claim (wholly or in part) by using the answer form. In the latter case, the debtor has to state the reasons why he or she challenges the claim. A non-motived challenge is seen as an absence of challenge.
As a third step, the procedure is cut short for the debts that are paid or that are challenged. In the latter case, the creditor is free to initiate an ordinary civil procedure. If, in a procedure on the merits of the case, the challenge as formulated by the debtor is clearly unfounded or unreasonable, the debtor can be condemned to a fine for abuse of process.
As a fourth step, an enforceable title is issued in case the debtor does not react in time or if there is no agreement on payment facilities. At the request of the creditor, the bailiffs draws up a procès-verbal of non-challenge that is declared enforceable by a judge who is part of the management committee that deals with the publication of attachment orders. The enforcement is suspended if the debtor initiates a judicial procedure, which he or she can by using a petition (not a writ of summons).
The procedure and its scope are surrounded by a number of safeguards. First, the procedure can only be used for unchallenged claims. Once a claim is challenged, the ordinary procedure applies and a judge will have to adjudicate the dispute. Second, the scope is limited to commercial claims and debts, in the sense that the creditor and the debtor have to be registered at the Central Enterprise Databank. Are excluded from the scope of application: public debtors, private (or non-commercial) creditors and debtors, insolvency procedures, and most tort claims between private (or non-commercial) parties.130x Exceptions are tort claims that are laid down in an agreement or I.O.U. and tort claims dealing with joint ownership. Third, the interests and penalties are legally capped at 10% of the claim.131x As a general rule, the judge has the discretionary power to reduce the contractual interests and penalties. Fourth and finally, the procedure can only be initiated by a lawyer.132x Under the motto that the lawyer is the first judge.
The Belgian National Chamber of Bailiffs will create an electronic database that will be called Central Register for the Recovery of Unchallenged Claims. All decisions relating to the aforementioned procedure will be registered in this database. Bailiffs will be able to consult it for every creditor and debtor.
In Belgium, relief in small and simple matters can be obtained before the Justice of the Peace. This small claims court, that has general jurisdiction over all claims that do not exceed € 2.500, is an easily accessible court, in the sense that a petition can be used to bring a claim and pro se litigants are common and allowed. However, the judiciary is under constant pressure. For many decades, austerity has been important issue in the Belgian justice system. There has always been a general perception and even conviction that the system is always underfunded. Recent examples are the non- or late payment of court-appointed experts, refusing to declare vacant judicial mandates, cutting back on the number of clerks, not investing in IT and digitisation, etc. One notable example are the budgetary constraints on legal aid,133x Service public fédéral Justice, La réforme de l’aide juridique, 3 May 2013, <http://justice.belgium.be/fr/nouvelles/communiques_de_presse/news_pers_2013-05-03.jsp> (last visited 29 June 2015). For more detailed data, see Hiil, Legal Aid in Europe: Nine Different Ways to Guarantee Access to Justice?, 21 February 2014, <www.hiil.org/data/sitemanagement/media/Report_legal_aid_in_Europe.pdf> (last visited 29 June 2015) and The European Commission for the Efficiency of Justice, Evaluation of European Judicial Systems. 5th Report – Edition 2014 (2012 data), <www.coe.int/t/dghl/cooperation/cepej/evaluation/default_en.asp> (last visited 29 June 2015). which is vital in small and simple matters. According to the Belgian NICC,134x National Institute for Criminology and Criminality. the number of legal aid cases (i.e. second-line judicial assistance135x See supra Section 1.5. ) has doubled over the years. In average, the costs have risen with 8% to 9% per year. In 2012, the legal aid system costed € 78 million. This is three times more than in the beginning of the nineties, when the budget was € 20 million. In 2013, the government came up with some proposals to tackle this budgetary explosion. For example, it was suggested that young lawyers should be obliged to do at least five legal aid cases for free. Big law firms could do the same and would get in return a pro bono label from the government. Another proposal was to charge legal aid litigants a minimum fee of € 30. To date, none of these proposals have been turned into legislative proposals.
The current summary order for payment procedure, which was introduced in 1967, clearly did not meet its goals.136x See supra Section 2.2.5. Statistics are low, and there is constant scholarly criticism, not only about some of the technical rules (e.g. the financial threshold, the prior demand for payment, the impossibility to obtain a decision that is provisionally enforceable, and the mandatory assistance of a lawyer) but also about its acceptance by the public. Many proposals were made to amend the procedure. To date, all of them failed, also because the European context is completely ignored. Recently, the government proposed a new recovery procedure for unchallenged claims that would exist beside the existing summary order for payment procedure. Most interestingly, the government wants to keep the recovery of unchallenged claims outside the courts. It should be an administrative procedure with a key role for the bailiff.
The latter could be seen as part of a new and general trend: keeping small and unchallenged claims outside the judiciary and providing for cheaper and more efficient alternatives. The judiciary should fall back on its core task: adjudicating complex disputes. In 2011 and regarding small consumer claims, the Federal Public Service of Economy launched Belmed (Belgian Mediation) which is a digital ADR and ODR portal.137x <www.belmed.fgov.be> (last visited 29 June 2015). See on Belmed S. Voet, ‘Belgium’, in Ch. Hodges, I. Benöhr & N. Creutzfeldt-Banda (eds.), Consumer ADR in Europe (2012) 25 and S. Voet, ‘Public Enforcement and A(O)DR as Mechanisms for Resolving Mass Problems: A Belgian Perspective’, in Ch. Hodges and A. Stadler (eds.), Resolving Mass Disputes. ADR and Settlement of Mass Claims (2013) 285. Belmed offers information about all existing ADR agencies, in the sense that it gives a clear and easily accessible overview of all Belgian arbitration, conciliation, mediation, and ombudsman agencies. On the other hand, and this is the crucial part, Belmed offers the possibility of making an online application for arbitration, conciliation, or mediation. The aim is to create a single digital and easily accessible access point for the consumer and the tradesman. They simply have to fill out a form, and the Belmed system automatically sends the application to a competent ADR entity. Its aim overlaps with the 2013 Consumer ODR Regulation that wants to create a pan-European ODR platform.138x Regulation of the European Parliament and of the Council 524/2013 on online dispute resolution for consumer disputes and amending Regulation (EC) No 2006/2004 and Directive 2009/22/EC, OJ 2013 L 165/1. In 2014, Belgium was one of the first Member States to implement the 2013 Consumer ADR Directive.139x Directive of the European Parliament and of the Council 11/2013 on alternative dispute resolution for consumer disputes and amending Regulation (EC) No 2006/2004 and Directive 2009/22/EC, OJ 2013 L 165/63. The Act of 4 April 2014 not only transposes the minimum quality standards for ADR entities, as enumerated in the Directive, into national law but also creates a Consumer Ombudsman Service that will act as a residual ADR entity that will be competent to deal with disputes for the resolution of which no existing Belgian ADR entity is competent.140x Loi du 4 avril 2014 portant insertion du Livre XVI, 'Règlement extrajudiciaire des litiges de consommation' dans le Code de droit économique, Moniteur Belge (Official Gazette of Belgium) 12 May 2014, at 38262. See S. Voet, ‘Buitengerechtelijke regeling consumentengeschillen’, 308 Nieuw Juridisch Weekblad 674 (2014). All these initiatives aim to enhance the out-of-court resolution of small consumer claims.
1 See for an analysis B. Allemeersch, P. Taelman, P. Van Orshoven & B. Vanlerberghe (eds.), Nieuwe Justitie (2014) and D. Fries (ed.), Le nouveau paysage judiciaire (2014). See for an analysis in English S. Voet, ‘Belgium’s New Specialized Judiciary’, 4 Russian Law Journal 129 (2014).
2 Loi du 1 décembre 2013 portant réforme des arrondissements judiciaires et modifiant le Code judiciaire en vue de renforcer la mobilité des membres de l’ordre judiciaire, Moniteur Belge (Official Gazette of Belgium) 10 December 2013, at 97957; loi du 18 février 2014 relative à l’introduction d’une gestion autonome pour l’organisation judiciaire, Moniteur Belge (Official Gazette of Belgium) 4 March 2014, at 18200 and loi du 21 mars 2014 portant modification de la loi du 1 décembre 2013 portant réforme des arrondissements judiciaires et modifiant le Code judiciaire en vue de renforcer la mobilité des membres de l’ordre judiciaire, Moniteur Belge (Official Gazette of Belgium) 24 March 2014, at 23194. See also loi du 8 mai 2014 portant modification et coordination de diverses lois en matière de Justice (I), Moniteur Belge 14 May 2014, at 39086 and loi du 12 mai 2014 portant modification et coordination de diverses lois en matière de Justice (II), Moniteur Belge (Official Gazette of Belgium) 19 May 2014, at 39863.
3 Loi du 30 juillet 2013 portant création d’un tribunal de la famille et de la jeunesse, Moniteur Belge (Official Gazette of Belgium) 27 September 2014, at 68429. See for an analysis K. Devolder, De bevoegdheidsverdeling in familiezaken: voor en na de familierechtbank (2014).
4 Loi du 26 mars 2014 modifiant le Code judiciaire et la loi du 2 août 2002 concernant la lutte contre le retard de paiement dans les transactions commerciales en vue d’attribuer dans diverses matières la compétence au juge naturel, Moniteur Belge (Official Gazette of Belgium) 22 May 2014, at 40635.
5 All courts discussed in this article are federal courts. Although Belgium is a (complicated) federal state composed of three (language) communities and three (economic) regions, the judicial organisation remains a federal competence. The three (language) communities are the Flemish (Dutch-speaking) Community, the French (French-speaking) Community, and the German-speaking Community. The three (economic) regions are the Flemish Region, the Walloon Region, and the Brussels-Capital Region. For a good understanding of the differences between the Flemish and the Walloons, see R. Mnookin and A. Verbeke, ‘Persistent Nonviolent Conflict with No Reconciliation: The Flemish and Walloons in Belgium’, 72 Law & Contemporary Problems 151 (2009).
6 Art. 590 Belgian Judicial Code.
7 Art. 591 Belgian Judicial Code.
8 These are East Flanders, West Flanders, Antwerp, Limburg, Leuven, Brabant wallon, Brussels, Namur, Liège, Hainaut, Luxembourg, and Eupen.
9 Art. 601bis Belgian Judicial Code.
10 Art. 76 Belgian Judicial Code.
11 These are Antwerp, Brussels, Ghent, Liège, and Mons.
12 Art. 573 Belgian Judicial Code.
13 Art. 578 Belgian Judicial Code.
14 Art. 577 Belgian Judicial Code.
15 Art. 617 Belgian Judicial Code.
16 Art. 602 Belgian Judicial Code.
17 Art. 617 Belgian Judicial Code.
18 Art. 101, §1 Belgian Judicial Code.
19 Art. 607 Belgian Judicial Code.
20 Art. 617 Belgian Judicial Code.
21 Art. 608 Belgian Judicial Code. E.g. an appellate decision of the Court of Appeal or a decision of the Justice of the Peace or the Police Court involving a claim less than € 1.860.
22 See C.H. van Rhee, ‘Dutch National Report with Some Additional Information on Belgium and France’, in D. Maleshin (ed.), Civil Procedure in Cross-cultural Dialogue: Eurasia Context: IAPL Word Conference on Civil Procedure, September 18-21, 2012, Moscow, Russia (2012) 196.
23 Ibid., at 196 and the quote of B. Allemeersch in note 4.
24 Art. 6 Belgian Judicial Code.
25 For a summary in English, see P. Lefebvre, ‘Belgium’, in S.R. Grubbs (ed.), International Civil Procedure (2003) 75.
26 See P. Van Orshoven, ‘The Belgian Judicial Code (1967)’, in C.H. van Rhee (ed.), European Traditions in Civil Procedure (2005) 97 and C.H. van Rhee, D. Heirbaut & M. Storme (eds.), The French Code of Civil Procedure (1806) after 200 Years. The Civil Procedure Tradition in France and Abroad (2008).
27 Art. 700 Belgian Judicial Code.
28 Arts. 1034bis-1034sexies Belgian Judicial Code. This is a written request directly addressed to the court by the plaintiff. The clerk of the court notifies it to the defendant. Apart from its form, the petition has the same legal effects as the writ of summons: it commences adversary proceedings between the parties.
29 Art. 706 Belgian Judicial Code.
30 Art. 707 Belgian Judicial Code.
31 Art. 728, §1 Belgian Judicial Code. Only counsels have the opportunity to agree upon a written appearance replacing the personal appearance (Art. 719 Belgian Judicial Code).
32 Art. 728, §2 Belgian Judicial Code.
33 Art. 728, §2bis Belgian Judicial Code.
34 Art. 728, §3 Belgian Judicial Code.
35 Ibid. These disputes have to do with subsistence minimum and social welfare/services provided by PCSWs.
36 Art. 735 Belgian Judicial Code. These cases are pleaded at the preliminary hearing.
37 Arts. 802-806 Belgian Judicial Code.
38 Art. 742 Belgian Judicial Code.
39 Art. 740 Belgian Judicial Code.
40 Art. 747, §1 Belgian Judicial Code.
41 Art. 747, §2 Belgian Judicial Code.
42 Art. 748, §1 Belgian Judicial Code.
43 Art. 758 Belgian Judicial Code.
44 Art. 756bis Belgian Judicial Code.
45 Art. 770 Belgian Judicial Code.
46 For a thorough analysis, see B. Allemeersch, Taakverdeling in het burgerlijk proces (2007).
47 The causes of the claim are the underlying (legal) facts. The plaintiff has to determine these facts (Art. 702, 3° Belgian Judicial Code). The object of the claim is what is claimed by the parties, the advantage they want to obtain.
48 Art. 811 Belgian Judicial Code.
49 Art. 1138, 2° Belgian Judicial Code.
50 For an overview of Belgian evidence law, see B. Cattoir, Burgerlijk bewijsrecht (2013).
51 See the Roman adage da mihi factum, dabo tibi ius.
52 The court can even reopen the debates (Art. 774 Belgian Judicial Code).
53 See V. Sagaert and I. Samoy, ‘Belgium’, in Ch. Hodges, S. Vogenauer & M. Tulibacka (eds.), The Costs and Funding of Civil Litigation (2010) 217 and V. Sagaert and I. Samoy, ‘Cost and Fee Allocation in Civil Procedure’, in E. Dirix and Y.-H. Leleu (eds.), The Belgian Reports at the Congress of Washington of the International Academy of Comparative Law (2011) 279.
54 Arts. 1017-1024 Belgian Judicial Code.
55 Art. 1017 Belgian Judicial Code.
56 Art. 1018 Belgian Judicial Code.
57 This means that the actual expenses and fees are not recoverable, but only a part of it.
58 This means that the winning party has to be represented by a lawyer. Pro se litigants or litigants being represented by a non-lawyer have no right to compensation.
59 See B. Hubeau and A. Terlouw, Legal Aid in the Low Countries (2014).
60 Art. 23 Belgian Constitution.
61 Arts. 664-699ter Belgian Judicial Code. One has to show that the claim seems legitimate and that his or her income is insufficient. A request must be submitted to the office of the court before which a judicial procedure would be initiated.
62 Arts. 508/1-508/25 Belgian Judicial Code.
63 Sagaert and Samoy (2010), above n. 53, at 224.
64 See supra Section 1.1.
65 See supra Section 1.3.
66 Art. 584 Belgian Judicial Code.
67 E.g., the appointment of a court expert, ordering the testimony of a witness, ordering a publication ban, ordering a party to do something or to stop something to do, ordering an injunction, etc.
68 Art. 1039 Belgian Judicial Code.
69 E.g. in normal proceedings, there have to be at least 8 days between the serving of the writ of summons or the petition and the preliminary hearing (see supra Section 1.3). In summary proceedings, this term is 2 days.
70 See P. Taelman and S. Voet, ‘Mediation in Belgium: A Long and Winding Road’, in C. Esplugues and L. Marquis (eds.), New Developments in Civil and Commercial Mediation – Global Comparative Perspectives (2015) forthcoming.
71 Art. 731 Belgian Judicial Code. See also Art. 3(a) of the Directive of the European Parliament and of the Council 2008/52 on certain aspects of mediation in civil and commercial matters, OJ 2008 L 136/3.
72 Art. 734 Belgian Judicial Code. The article stipulates that the conciliation attempt has to be mentioned in the judicial decision.
73 Art. 733 Belgian Judicial Code.
74 Regulation of the European Parliament and of the Council 861/2007 establishing a European Small Claims Procedure, OJ 2007 L 199/1.
75 Regulation of the European Parliament and of the Council 1896/2006 creating a European order for payment procedure, OJ 2006 L 399/1.
76 Arts. 1338-1344 Belgian Judicial Code. For an analysis, see J. Bette, ‘Un mode de récupération de créance simple, rapide et peu onéreux: la procédure sommaire d’injonction de payer’, Cahier du Juriste 8 (1996); A. Doudelet, ‘Summiere rechtspleging om betaling te bevelen’, Rechtskundig Weekblad 505 (1971); G. Closset-Marchal, ‘La procédure sommaire d’injonction de payer: un nouvel essor?’, Tijdschrift voor Vrederechters 35 (1988); L. Samyn, ‘De uitdagingen van het Europees (internationaal) procesrecht voor het Belgisch procesrecht’ (doctoral thesis on file at the UA, Antwerp); A. Vareman, ‘Summiere rechtspleging en territoriale bevoegdheid’, Rechtskundig Weekblad 201 (1995-1996); A. Vareman, ‘Art. 1338 Ger.W. – Art. 1344 Ger.W.’, in Gerechtelijk recht. Artikelsgewijze commentaar met overzicht van rechtspraak en rechtsleer (1996) (looseleaf); X., ‘Les procédures européenne et belge de règlement simplifié des litiges pécuniaires’, 1 Ius & Actores 5 (2009). For a summary in English, see G. Van Mellaert, ‘Order for Payment Under Belgian Law’, in W. Rechberger and G. Kodek (eds.), Orders for Payment in the European Union (2001) 91. See also <https://e-justice.europa.eu/content_order_for_payment_procedures-41-be-maximizeMS_EJN-en.do?member=1> (last visited 29 June 2015).
77 The procedure was amended in 1987.
78 Van Mellaert, above n. 76, at 91.
79 Only pecuniary claims are eligible.
80 Van Mellaert, above n. 76, at 92 (underlying that a creditor may not artificially split up his claim in several parts in order to benefit from the procedure).
81 Justice of the Peace of Roeselare, 7 November 1996, Rechtskundig Weekblad 192 (1997-1998).
82 Justice of the Peace of Borgerhout, 28 December 1970, Rechtskundig Weekblad 1895 (1971-1972).
83 Art. 9 Loi du 26 mars 2014 modifiant le Code judiciaire et la loi du 2 août 2002 concernant la lutte contre le retard de paiement dans les transactions commerciales en vue d’attribuer dans diverses matières la compétence au juge naturel, Moniteur Belge (Official Gazette of Belgium) 22 May 2014, at 40635 and Art. 32 Loi du 19 décembre 2014 portant des dispositions diverses en matière de Justice (1), Moniteur Belge (Official Gazette of Belgium) 29 December 2014, at 106446.
84 Art. 1338 Belgian Judicial Code. Originally, the claim had to be proven by a deed from the debtor. This condition was dropped by the 1987 legislative amendments.
85 Contra: Justice of the Peace of Fexhe-Slins, 26 March 1981, Jurisprudence de Liège 175 (1981).
86 Van Mellaert, above n. 76, at 92.
87 Justice of the Peace of Ostend, 28 November 1997, TWVR 1998, 44 and Justice of the Peace of Fexhe-Slins, 26 March 1981, Jurisprudence de Liège 175 (1981) .
88 Justice of the Peace of Wezet, 29 June 1987, Jurisprudence de Liège 1011 (1987) .
89 Art. 1344 Belgian Judicial Code.
90 Art. 1339 Belgian Judicial Code.
91 If this is forgotten, the claim introducing a summary order for payment procedure will be declared inadmissible (Justice of the Peace of Roeselare, 12 April 1994, Tijdschrift voor Vrederechters 392 (1994)).
92 There is no sanction if the term of 15 days is not respected.
93 Art. 1340 Belgian Judicial Code.
94 See supra Section 1.4.
95 The claim should correspond with the claim as formulated in the prior demand for payment (Justice of the Peace of Bastenaken, 5 February 1971, Jurisprudence de Liège 207 (1970-1971)).
96 Van Mellaert, above n. 76, at 94.
97 Art. 1341 Belgian Judicial Code.
98 Justice of the Peace of Herne, 16 February 1983, Tijdschrift voor Vrederechters 211 (1983).
99 Art. 1342 Belgian Judicial Code. Rejection is possible either on the merits or because the forms were not respected.
100 Art. 1343, §1 Belgian Judicial Code.
101 Art. 806 Belgian Judicial Code.
102 Art. 1343, §2 Belgian Judicial Code.
103 Art. 1399 Belgian Judicial Code.
104 Art. 1414 Belgian Judicial Code.
105 Art. 1343, §4 Belgian Judicial Code.
107 Art. 1343, §3 Belgian Judicial Code.
108 Arts. 1048 and 1051 Belgian Judicial Code.
109 Art. 1047 Belgian Judicial Code requires a bailiff’s writ to be served.
110 Failure to do so renders the petition null and void.
111 A. Berthe, ‘L’injonction de payer en droit belge – Aspects de lege lata et de lege ferenda’, 1 Ius & Actores 67 (2009); Closset-Marchal, above n. 76 and G. De Leval, ‘La procédure sommaire d’injonction de payer et l’espace européen’, in La procédure sommaire d’injonction de payer et l’espace européen, 3 Actualités du droit: revue de la Faculté de droit de Liège 399 (2003).
112 Closset-Marchal, above n. 76, at 38-40.
113 Green Paper on a European order for payment procedure and on measures to simplify and speed up small claims litigation, COM (2002) 746 final, at 9.
114 These are analysed in detail by Samyn, above n. 76, at 217-27.
115 Projet de loi introduisant l’injonction de payer dans le Code judiciaire, 10 August 2007, No. 4-139/1, <www.senate.be> (last visited 29 June 2015).
116 Projet de loi introduisant l’injonction de payer dans le Code judiciaire. Amendements, 18 March 2008, No. 4-139/2, <www.senate.be> (last visited 29 June 2015).
117 Projet de loi introduisant l’injonction de payer dans le Code judiciaire. Texte adopté par la commission, 24 June 2008, No. 4-139/8, <www.senate.be> (last visited 29 June 2015).
118 Projet de loi introduisant l’injonction de payer dans le Code judiciaire. Texte adopté en séance plénière et transmis à la Chambre, 26 June 2008, No. 4-139/9, <www.senate.be> (last visited 29 June 2015).
119 Projet de loi introduisant l’injonction de payer dans le Code judiciaire. Amendements, 21 January 2009, No. 52K1287/003, <www.lachambre.be> (last visited 29 June 2015).
120 Projet de loi introduisant l’injonction de payer dans le Code judiciaire. Rapport fait au nom de la commission, 9 March 2009, No. 52K1287/006, <www.lachambre.be> (last visited 29 June 2015).
121 Projet de loi introduisant l’injonction de payer dans le Code judiciaire. Avis du Conseil d’Etat, 8 May 2009, No. 52K1287/009, <www.lachambre.be> (last visited 29 June 2015).
122 However, in September 2010, the proposal was re-submitted to the Senate: Proposition de loi modifiant les articles 587, 589 et 628 du Code judiciaire en vue de l’introduction de l’injonction de payer dans le Code judiciaire, 2 September 2010, No. 5-59/1, <www.senate.be> (last visited 29 June 2015). This proposal was dropped in September 2014 because of the end of the legislature.
123 Projet de loi modifiant la procédure sommaire d’injonction de payer, 31 March 2014, No. 53K3512/001, <www.lachambre.be> (last visited 29 June 2015). The proposal was largely based on an advice of the Belgian High Council of Justice of 26 January 2011 (see <www.csj.be/fr/content/avis-doffice-sur-lapplication-de-linjonction-de-payer-europeenne> (last visited 29 June 2015)).
124 Directive of the European Parliament and of the Council 2011/7 on combating late payment in commercial transactions (recast), OJ 2011 L 48/1.
125 Samyn, above n. 76, at 226-27.
126 <http://www.koengeens.be/justitieplan> (last visited 29 June 2015).
127 Projet de loi modifiant le droit de la procédure civile et portant des dispositions diverses en matière de justice, 30 June 2015, No. 54K1219/001, <www.lachambre.be> (last visited 1 July 2015).
128 See supra Section 2.2.5.
129 This is comparable to the prior demand for payment in the summary order for payment procedure (see supra Section 2.2.2).
130 Exceptions are tort claims that are laid down in an agreement or I.O.U. and tort claims dealing with joint ownership.
131 As a general rule, the judge has the discretionary power to reduce the contractual interests and penalties.
132 Under the motto that the lawyer is the first judge.
133 Service public fédéral Justice, La réforme de l’aide juridique, 3 May 2013, <http://justice.belgium.be/fr/nouvelles/communiques_de_presse/news_pers_2013-05-03.jsp> (last visited 29 June 2015). For more detailed data, see Hiil, Legal Aid in Europe: Nine Different Ways to Guarantee Access to Justice?, 21 February 2014, <www.hiil.org/data/sitemanagement/media/Report_legal_aid_in_Europe.pdf> (last visited 29 June 2015) and The European Commission for the Efficiency of Justice, Evaluation of European Judicial Systems. 5th Report – Edition 2014 (2012 data), <www.coe.int/t/dghl/cooperation/cepej/evaluation/default_en.asp> (last visited 29 June 2015).
134 National Institute for Criminology and Criminality.
135 See supra Section 1.5.
136 See supra Section 2.2.5.
137 <www.belmed.fgov.be> (last visited 29 June 2015). See on Belmed S. Voet, ‘Belgium’, in Ch. Hodges, I. Benöhr & N. Creutzfeldt-Banda (eds.), Consumer ADR in Europe (2012) 25 and S. Voet, ‘Public Enforcement and A(O)DR as Mechanisms for Resolving Mass Problems: A Belgian Perspective’, in Ch. Hodges and A. Stadler (eds.), Resolving Mass Disputes. ADR and Settlement of Mass Claims (2013) 285.
138 Regulation of the European Parliament and of the Council 524/2013 on online dispute resolution for consumer disputes and amending Regulation (EC) No 2006/2004 and Directive 2009/22/EC, OJ 2013 L 165/1.
139 Directive of the European Parliament and of the Council 11/2013 on alternative dispute resolution for consumer disputes and amending Regulation (EC) No 2006/2004 and Directive 2009/22/EC, OJ 2013 L 165/63.
140 Loi du 4 avril 2014 portant insertion du Livre XVI, 'Règlement extrajudiciaire des litiges de consommation' dans le Code de droit économique, Moniteur Belge (Official Gazette of Belgium) 12 May 2014, at 38262. See S. Voet, ‘Buitengerechtelijke regeling consumentengeschillen’, 308 Nieuw Juridisch Weekblad 674 (2014).


text:
The Respondent is Stanley Pace of Flower Mound, Texas, United States of America.
The disputed domain name <mahindraandmahindra.com> is registered with Fabulous.com Pty Ltd.
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 13, 2011. On December 13, 2011, the Center transmitted by email to Fabulous.com a request for registrar verification in connection with the disputed domain name. On December 14, 2011, Fabulous.com transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on December 20, 2011 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on December 23, 2011.
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on December 23, 2011. In accordance with the Rules, paragraph 5(a), the due date for Response was January 12, 2012. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 18, 2012.
The Center appointed Louis-Bernard Buchman as the sole panelist in this matter on February 3, 2012. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.
Regarding the language of the proceeding, the Center ascertained from the concerned Registrar, Fabulous.com Pty Ltd., that the language of the Registration Agreement is English. Accordingly, the Panel determines that pursuant to paragraph 11(a) of the Rules the language of the proceeding is English, i.e., the language of the registration agreement.
The Complainant is a market leader in multi-utility vehicles in India and is one of the largest manufacturer of tractors in the world.
The Complainant is part of the Mahindra Group of Companies which ranks among the top 10 industrial houses of India.
It has three Assembly plants in the USA, and significant international business with manufacturing plants in the USA, including with International Truck & Engine Corporation.
Since adopting its current name on January 13, 1948, it has been carrying on its business of manufacturing and dealing in goods under its corporate name / trading style “Mahindra & Mahindra Ltd.” and is commonly referred to as “Mahindra” or “M&M”.
Because of the extensive reputation of the mark MAHINDRA in India and abroad, the goods and services bearing the trade mark / name MAHINDRA have come to be associated exclusively with the Complainant, as stated by the Supreme Court of India in the case of Mahendra & Mahendra Paper Mills Limited Vs. Mahindra & Mahindra Ltd. – (2002) 2 SCC 147, and by the High court of the State of Gujarat in the case of Mahendra & Mahendra Seeds Pvt. Lt. Vs. Mahindra & Mahindra Limited – 2003 (26) PTC 434 (Guj.).
Due to application of high, stringent and non-compromising standards of quality by the Complainant, the goods and services bearing the mark MAHINDRA are popular, highly in demand and known for their superior quality and reliability, not only in India but also in several countries of the world.
The Complainant has been the registered proprietor of a large number of trade mark registrations of or including MAHINDRA in several classes in India and the world, including by way of example United States trademark registration number 2255311, MAHINDRA, dated June 22, 1999.
In addition, the Complainant has registered and is using the mark MAHINDRA as a domain name and is thus the proprietor of various domain names having the mark MAHINDRA with gTLDs and ccTLD “.us”, “.au”, “.biz”, “.in”, “.org” & “.net”.
The Complainant has made substantial investment in advertising and promoting the goods and services bearing its marks.
The disputed domain name was created on May 23, 2009.
(i) The Complainant submits that the disputed domain name reproduces the mark MAHINDRA in which the Complainant has rights, and is confusingly similar to that mark insofar as the disputed domain name contains that mark in its entirety.
(ii) The Complainant contends that the Respondent has no rights or legitimate interests in respect of the disputed domain name as the Respondent has not used, or made any demonstrable preparations to use, the disputed domain name, which seems to be currently "listed for sale", in connection with a bona fide offering of goods or services. Furthermore, the Complainant contends that the Respondent is not and cannot be said to be making any legitimate noncommercial or fair use of the disputed domain name, and has no connection to the owner of the mark MAHINDRA and has received no authorization from the Complainant.
(iii) The Complainant submits that the Respondent has registered and is using the disputed domain name in bad faith. It alleges that by registering the disputed domain name the Respondent has intentionally blocked the Complainant from using the disputed domain name and that by allowing the disputed domain name to resolve to a parking page hosted by a free parking service provider, Sedo, which uses it to upload third party links, the Respondent has made illegal benefits from the disputed domain name. Moreover, by offering the disputed domain name for sale, the Respondent is attempting to monetize the disputed domain name. By intentionally attempting to attract for financial gain, Internet users to the Respondent’s website, by creating a deliberate confusion and/or deception with the Complainant’s mark as to the source, sponsorship, affiliation or endorsement of the Respondent’s website, the Respondent is disrupting the legitimate use of the mark MAHINDRA and is misleadingly diverting consumers. Lastly, the fact that the Respondent has sought to protect its details from being published by using privacy services further exemplifies its bad faith.
Under the Rules, paragraphs 5(e) and 14(a), the effect of a default by the Respondent is that the Panel shall proceed to a decision on the basis of the Complaint.
Paragraph 10(a) of the Rules gives the Panel broad discretion to conduct the proceedings and the Panel must ensure that the proceedings take place “with due expedition”.
Accordingly, in the interest of fairness and of deciding the case on the basis of the most complete available record, the Panel has undertaken some limited factual research into matters of public record insofar as it felt it needed the results of such research to reach its decision.
The Panel thus ascertained from the Center’s publicly available database of decided cases that the Respondent was a named respondent in eight cases during the last three calendar years.
Under paragraph 14(b) of the same Rules, the Panel is empowered to draw such inferences from the Respondent’s default as it considers appropriate under the circumstances.
In this case, the Panel finds that as a result of the default, the Respondent has failed to rebut any of the reasonable factual assertions that are made and supported by evidence submitted by the Complainant.
In particular, by defaulting and failing to respond, the Respondent has failed to offer the Panel any of the types of evidence set forth in paragraph 4(c) of the Policy from which the Panel might conclude that the Respondent has any rights or legitimate interests in the disputed domain name, such as making legitimate noncommercial or fair use of the disputed domain name.
In comparing the mark MAHINDRA to the disputed domain name, it is evident that the latter wholly incorporates the mark, followed by the generic term “.com”. The addition of generic terms does not ordinarily serve to distinguish a domain name from registered marks. See Banconsumer Service, Inc. v. Mary Langthorne, Financial Advisor, WIPO Case No. D2001-1367; Royal Bank of Canada v. RBC Bank, WIPO Case No. D2002-0672; and Allianz AG v. Marian Dinu, WIPO Case No. D2006-0318.
In the case of Oki Data Americas, Inc. v. ASD, Inc., WIPO Case No. D2001-0903, it had been held that “The fact that a domain name wholly incorporates a Complainant’s registered mark is sufficient to establish identity [sic] or confusing similarity for purposes of the Policy despite the addition of other words to such marks”.
The Panel finds that the disputed domain name is confusingly similar to the mark MAHINDRA, which it incorporates in its entirety.
Although a complainant bears the ultimate burden of establishing all three elements of paragraph 4(a) of the Policy, panels have recognized that this could result in the often impossible task of proving a negative proposition, requiring information that is primarily if not exclusively within the knowledge of the respondent.
Thus, the consensus view of UDRP panels is that paragraph 4(c) of the Policy shifts the burden to the respondent to come forward with evidence of a right or legitimate interest in the domain name, once the complainant has made a prima facie showing (as the Panel believes it has made in this case). See Document Technologies, Inc. v. International Electronic Communications Inc., WIPO Case No. D2000-0270.
As previously noted, the Respondent did not submit a Response, thus offering no reason for selecting the disputed domain name. There is no evidence that the Respondent is known by the disputed domain name or a corresponding name or uses a corresponding name in a business. The website associated with the disputed domain name resolves in a free parking page with uploaded third party links, and no information is provided on what rights or legitimate interests the Respondent may have in the disputed domain name.
To counter any notion that the Respondent has such rights or legitimate interests, the Complainant has argued that the Respondent (i) has no legitimate interests in the disputed domain name; (ii) has never made a fair use of the disputed domain name, in relation with a bona fide offering of goods and services, and has not made demonstrable preparations of such use; and (iii) has no connection to or authorization from the Complainant.
In the circumstances, the Panel is satisfied that the Complainant has established the second requirement of paragraph 4(a)(ii) of the Policy.
As noted above, the Respondent has failed to provide any exculpatory information or persuasive reasoning that might have led the Panel to question the Complainant’s arguments that the Respondent acted in bad faith by creating confusion to the detriment of the Complainant by registering a domain name similar to the Complainant’s mark.
It is well known that the registration of a domain name confusingly similar to a famous trademark by any entity that has no relationship to that mark may be, in certain circumstances, sufficient evidence of bad faith registration and use. See Pfizer Inc. v. NA, WIPO Case No. D2005-0072; AT&T Corp. v. John Zuccarini d/b/a Music Wave and RaveClub Berlin, WIPO Case No. D2002-0440; America Online, Inc. v. Anson Chan, WIPO Case No. D2001-0004; Veuve Clicquot Ponsardin Maison Fondée en 1772 v. The Polygenix Group Co., WIPO Case No. D2000-0163; Research in Motion Limited v. Dustin Picov, WIPO Case No. D2001-0492.
Furthermore, the uncontradicted assertion that the products of the Complainant (bearing its mark MAHINDRA) are "available in every continent except Antartica" is also evidence of bad faith on the part of the Respondent in registering a domain name confusingly similar to a mark used worldwide. See VeriSign Inc. v. Bin g Glu / G Design, WIPO Case No. D2007-0421.
At the time the disputed domain name was registered, the Complainant had widespread, extensive use and advertisement of its mark MAHINDRA for numerous years. The notoriety of the mark, coupled with its registration in the USA, where the Respondent is located, make it highly unlikely that the Respondent would not have known of the Complainant's rights in the mark prior to acquiring the disputed domain name. See Barney’s Inc. v. BNY Bulletin Board, WIPO Case No. D2000-0059; Kate Spade, L.L.C. vs. Darmstadter Designs, WIPO Case No. D2001-1384 citing Cellular One Group v. Paul Brien, WIPO Case No. D2000-0028.
The Panel also accepts that the Respondent’s website will directly or indirectly have generated revenue for the Respondent or whoever is responsible for the uploading of third party links on the page to which the Respondent's website resolves. The fact that it might not be the Respondent who has derived the gain is irrelevant. See Villeroy & Boch AG v. Mario Pingerna, WIPO Case No. D2007-1912.
The Panel has found that there is a clear pattern of conduct on the part of the Respondent in registering domain names in order to prevent owners of the relevant trade marks from reflecting such mark in a corresponding trade name, which is clearly evidenced by the eight UDRP case decisions that have found against the Respondent for similar instances of unjustified domain name registration (see Flow Companies, LLC v. Stanley Pace, WIPO Case No. D2010-0651; Kayak Software Corporation v. Stanley Pace and Micah Smurthwaite, WIPO Case No. D2010-1178; Novartis AG v. Jordan Smith / Stanley Pace, WIPO Case No. D2009-1738; Starkey Laboratories, Inc. v. Stanley Pace, WIPO Case No. D2010-0774; Viacom International Inc. v. Stanley Pace / M Smurth Waite, WIPO Case No. D2010-1149; Weil Cadillac-Hummer, Inc. v. Stanley Pace, WIPO Case No. D2010-1711; Novartis AG v. Jordan Smith / Stanley Pace, WIPO Case No. D2009-1738; and Weil Cadillac-Hummer, Inc. v. Stanley Pace, WIPO Case No. D2010-1711).
The Panel concludes in these circumstances that the Respondent’s registration, use and present holding of the disputed domain name indicate bad faith and that the requirement of paragraph 4(a)(iii) of the Policy is also satisfied in this case.
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name <mahindraandmahindra.com> be transferred to the Complainant.

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