In a judgment dated 26 September 2016, the Ghent Court of Appeal ruled that the verdict of the court of first instance ordering a litigant to submit certain letters to the court and to the opposing party cannot be appealed, even though the order was imposed under penalty of a fine. This deviates from previous case law which held that, if an injunction to submit certain documents was imposed under penalty of a fine, the injunction itself was not appealable, but the penalty was. The new solution is supported by the new article 1050 of the Judicial Code.

The Judicial Code grants a party to legal proceedings the opportunity to ask the court for an injunction ordering the opposing party to submit certain documents. A prerequisite for such a request is that the claimant can demonstrate that the opposing party is in possession of certain documents which support the claimant's claim (such as letters or e-mails). The court that decides to grant the injunction can also decide that the opposing party will have to pay a penalty if it continues to refuse to submit the documents.

Furthermore, according to article 880 of the Judicial Code, an injunction to submit documents to the court is not subject to appeal. Before the Potpourri I Act dated 19 October 2015, case law gave a restrictive interpretation to this provision, since the exclusion of the possibility to appeal is an exception to the general principle that all first instance decisions are appealable. In cases where the injunction to submit documents was imposed under penalty of a fine, the impossibility of an appeal was limited to the injunction itself. The penalty payment – and only the penalty payment – was considered to be appealable.

The Potpourri I Act maintained article 880, but expanded the exclusion of the possibility to appeal against an injunction to submit documents to all interim injunctions by introducing a new article 1050 in the Judicial Code. Henceforth, one can only bring an appeal against an interim injunction together with an appeal against the final judgment. An interim injunction is a decision whereby the court, before reaching the final judgment in a case, decides to further investigate the claim, or settles an intermediate dispute on an investigative measure, or provisionally settles the situation of the parties. The injunction to submit documents to the court is an example of an interim injunction. Other examples include the appointment of a court expert or an injunction to appear before the court in personam. The new Article 1050 of the Judicial Code entered into force on 1 November 2015.

According to the Ghent Court of Appeal, this amendment implies that, now, the penalty payment is no longer immediately appealable. The penalty payment is to be considered accessory to the injunction to submit documents and therefore is to be considered an integral part of that interim injunction. Judging otherwise would be contrary to the will and intention of the legislator and would deprive the (new) Article 1050 of the Judicial Code of all meaning.

This ruling has important implications. When a party to legal proceedings asks the court for an interim injunction under penalty of a fine, it is recommended that the counterparty explicitly deals with the penalty in its written statements before the court, as an immediate appeal is no longer possible.