Belgium
The courts have the power to grant interim measures (voorlopige maatregelen/mesures provisoires) to protect the interests of the parties before the commencement and during the course of proceedings. A person seeking such interim measures has three options:
- Request the interim measures before the same court that has jurisdiction to rule on the merits.
- In summary proceedings (procedure in kort geding/action en référé), before the President of the Court of First Instance, Business Court or Employment Tribunal (depending on which court has jurisdiction), provided the plaintiff establishes that there is urgency – that is, the applicant would suffer harm were the case not dealt with through summary or expedited proceedings.
- By filing an ex parte application with the President of the Court of First Instance, Business Court of Employment Tribunal (depending on which court has jurisdiction). Since the party against whom relief is sought will not be informed of the proceedings until after the order is delivered, there is a high threshold for obtaining interim relief on an ex parte The plaintiff will have to show that there is an absolute necessity that justifies ex parte proceedings and thus a derogation from the adversarial nature of civil proceedings. This is the case where the addressee cannot be identified or where the element of surprise is essential for the relief to be effective.
Typical interim relief measures in Belgium include:
- the appointment of an expert, since the courts are in general reluctant (although it occasionally does happen in practice) to rely on evidence on technical issues submitted by the parties in, for instance, the form of a party-appointed expert report.
- the payment of a provisional sum of money, for example in a dispute relating to breach of contract.
- the production of documents.
- an injunction ordering a party to do or refrain from doing a particular action pending a decision on the merits - for instance, an order requiring a party continue performing a contract in a dispute about the termination of a contract, the suspension of construction works, the removal of an article from a magazine, newspaper or website, or the transfer of an asset to the other party.
To compel the addressee of the order to comply with it, the court can impose a penalty. For instance, in a case where the lessee of a car refuses to return the car to the lessor, the court could impose a penalty of EUR500 (or any other amount it deems appropriate) for every day the lessee fails to do so. If the addressee fails to comply with the order, it will have to pay the penalty to the other party. Though not required to do so, the court usually sets a maximum penalty that a party will be liable to pay.
If interim measures are granted in proceedings separate from the proceedings on the merits, a subsequent proceeding on the merits usually follows. However, this is not a requirement. It is, for example, possible that the parties may settle the dispute outside of court or that a merits proceeding is no longer required because a debtor has paid its debt. In addition, the judge granting interim relief sometimes sets a deadline by which a party must commence a proceeding on the merits. Failure to do so may lead to the expiry of the interim measure.
An order granting or rejecting interim measures can be appealed in the same way that any other judgment. Where the interim measure was granted on an ex parte basis, a special type of opposition (derdenverzet/tierce opposition) is available to the party against whom the order was directed. A party has one month from the service of the order to file the appeal or the opposition; the court will then decide the case anew on both points of law and fact. If, however, the interim measure is ordered by the same court that will subsequently rule on the merits, an appeal against the interim order must be brought together with the judgment on the merits.
Such an appeal or opposition does not suspend the enforceability of the interim relief. The party to whom to order has been granted may continue the enforcement even if the other party decides to appeal or file an opposition.