EUPillar NV I v E - Gent, 14 January 2009

Summary

The appellant, I., claims compensation from E., respondent, for the unilateral termination of their exclusive distribution agreement. The respondent is a company incorporated in Austria and contests the international jurisdiction of the Belgian courts. The courts should determine their jurisdiction according to the claim as described by the plaintiff in the document instituting the proceedings – this is the case both under Belgian law of procedure and where the international jurisdiction of the Belgian courts is concerned. The Belgian Act of 27 July 1961 on the unilateral termination of exclusive distribution agreements of undetermined duration provides in its Art. 4(1) that the distributor may, upon termination of a distribution agreement effective within the entire Belgian territory or a part thereof, in any event summon the supplier, either before the court of his own domicile, or before the court of the domicile or registered office of the supplier. The parties cannot derogate from this provision before the end of the distribution agreement. The Brussels I Regulation is applicable to proceedings instituted from 1 March 2002 (cf. Art. 76 Regulation). The parties incorporated a choice of court clause in their exclusive distribution agreement in favour of the courts of Linz in Austria. This clause satisfies the requirements of Art. 23 Brussels I. The application of Art. 4(1) of the Belgian Act of 27 July 1961 is therefore excluded, since the European Regulation takes precedence over rules of domestic Belgian law. According to the choice of court clause, the distributor may also be sued at the place where its seat is established. This option is provided solely in favour of the supplier. The appellant argues that this imbalance renders the clause null and void. The Court disagrees. The foundation of Art. 23 Brussels I rests on the principle of party autonomy (see ECJ, 19 June 1984, case 74/83). The clause in the exclusive distribution agreement is clear and precise: it says very precisely which courts have jurisdiction. The parties agreed that I. would have to sue E. at the courts in Linz, while E. may sue I. at one of three places: the courts of Linz, of the place where I. is established, or the arbitral tribunal of the International Chamber of Commerce in Paris. Moreover, the parties are allowed to enter into a jurisdiction agreement after their initial contract has been made. The commercial relationship between the parties dates back to 1988, while they only entered into the jurisdiction agreement on 6 June 2001. It suffers no doubt, however, that at the time of the termination of the distribution agreement in 2007, their relationship was governed by the agreement of 6 June 2001. Short critique: The court correctly applies Brussels I. The court accepts the validity of an asymmetrical jurisdiction clause, as long as it is sufficiently clear and precise.