EUPillar NV P.B. v. J.L. and G.C. - Antwerpen, 30 March 2009

Summary

In 2002, the appellant gave oral permission to the respondents to distribute its products on the Austrian market. In 2004, the respondents split up and they agreed – orally – that one of them would continue the business. In 2006 there agreement changed in the sense that the appellant now directly supplied the Austrian dealers, with the respondent in charge of the commercial follow-up. According to the appellant, the respondent was not only a commercial agent but also the final seller. The appellant alleges that the respondent was consistently late with payments; and put an end to the distribution agreement on 28 February 2007. After failed correspondence between the parties, the appellant sues the defendant before the courts of Mechelen, Belgium, pursuant to its own general terms and conditions. The defendant contests the jurisdiction of the Belgian courts. The first judge dismissed the claim for lack of jurisdiction. The Court of Appeal examines whether the choice of court clause satisfies the formal requirements of Art. 23(1) Brussels I Regulation. A choice of court clause in the general terms and conditions of one of the parties only satisfies those requirements when an oral agreement comes within the framework of a continuing trading relationship between the parties which is based on the general conditions of one of them. The appellant fails to establish that the respondent was notified of its general terms and conditions nor that he accepted them. The invoices and reminders issued by the defendant do not refer to the general terms and conditions. The only reference – in German – can be found on an order confirmation, but it still is not proven that the appellant actually sent the general terms and conditions to the respondent. Neither does the appellant prove that the parties had an “oral agreement evidenced in writing” as required by Art. 23(1)(a) of the Brussels I Regulation. In the alternative, the appellant argues that the Belgian courts have jurisdiction on the basis of Art. 5(1) Brussels I Regulation (as well as Art. 96 of the Belgian Code of Private International Law). The Court of Appeal applies Art. 5(1)(b), second indent. It is uncontested that the parties had an agreement for the provision of services. The respondent was active in the Austrian market. All order confirmations mark the Austrian address of the respondent for delivery. Art. 96 of the Belgian PIL code is not relevant here, since it is superseded by the Brussels I Regulation. The Belgian courts lack jurisdiction. Only the courts of Austria have jurisdiction pursuant to Art. 2 Brussels I Regulation. SHORT CRITIQUE The Court of Appeal slightly mixes up the difference between art. 23(1)(a) and 23(1)(b) and the need for an oral agreement. The Court uses a passage from the “Segoura” case of the ECJ (24/76) (without, however, explicitly referring to that case), while in fact this case law interpreted Art. 17 of the 1968 Brussels Convention, before an art. 17(1)(b) was added in the new version of San Sebastian of 1986. However, even if the court had referred explicitly to art. 23(1)(b) (in the text of the judgment, the court refers only to art. 23(1) in general and art. 23(1)(a)), this probably would not have led it to a different conclusion. It seems that the problem here was above all one of a lack of evidence: the appellant failed to prove that it had actually sent a copy of its general terms and conditions to the respondents. The Court correctly applies art. 5(1)(b).