Belgian Court of Cassation confirms possibility of civil seizure of evidence

On 4 January 2024 the Belgian Court of Cassation confirmed that in addition to the Belgian saisie-contrefaçon in case of alleged infringements on intellectual property rights and the specific civil seizure for alleged trade secret violations, civil seizures of evidence including access to private homes are permissible under Belgian law.

In a previous newsletter we discussed the decision of the Ghent Court of Appeal of 30 June 2022, in which it allowed a civil seizure of evidence in a dispute on an alleged act of unfair competition.

The case stemmed from a dispute between a Belgian family company and its former employee/business partner, who set up a competing business taking two important employees and allegedly a lot of confidential information and knowhow from the company.

Initially, the President of the court of first instance granted a unilateral petition allowing a custodian, in practice a bailiff, to enter the registered office and production workshop of the company of the former business partner as well as the private home and car of the former business partner and his employee.

After this unilateral decision was overruled on third-party opposition, the issue of whether a civil seizure of evidence is possible (in general and in casu) was brought before the Ghent Court of Appeal.

The Ghent Court ruled that the search for truth has a central place in Belgian’s civil procedural law and a limited form of seizure of evidence is possible, as long as the interests of the parties concerned are balanced. According to the Court the question is thus whether the measures are proportionate to the objective pursued.

As the Court found that this was the case in casu, it restored the original decision allowing the seizure of evidence, however with the exception of the right to search the private homes and car of the defendants since it was not made sufficiently plausible that the targeted documents could be found there.

The defendants subsequently lodged an appeal in cassation, contending that the civil seizure of evidence with access to private homes is not supported by Belgian law. They argued that such a seizure contravenes provisions regarding summary proceedings, evidence and seizure in the Belgian Judicial Code and infringes upon the right to respect and inviolability of the home, as protected by both the Belgian Constitution and the European Convention on Human Rights (ECHR).

On 4 January 2024, the Belgian Court of Cassation dismissed the appeal, affirming the existence of a legal basis, specifically outlined in the Belgian Judicial Code. The court ruled that civil seizure of evidence involving access to private homes does not inherently violate the right to respect and inviolability of the home, as enshrined in the Belgian Constitution and the European Convention on Human Rights (ECHR), as exceptions thereupon are permitted when explicitly provided for by law.

With this decision, Belgium’s highest court in the judicial system has confirmed that, beyond the Belgian saisie-contrefaçon for alleged intellectual property rights infringements and the specific civil seizure for alleged trade secret violations, civil seizures of evidence including access to private homes are possible provided the necessary conditions are met.

 CAPE IP Law

11 April 2024