EUPillar NV C v R.P. AB - 2012/AR/447 - Antwerpen, 15 April 2013

Summary

The appellant sued the respondent for payment of 21 invoices in the total amount of 118,826.10 EUR plus interest (legal and conventional). The appellant brought proceedings against the respondent on 28 September/2 October 2009. The first judge dismissed the case for lack of jurisdiction. DECISION OF THE COURT The Court must examine its jurisdiction on the basis of the claim as described in the document instituting the proceedings; regardless of the substance of the case. The court must not investigate the substance of the case to answer the preliminary question of its international jurisdiction. The appellant brought proceedings against the respondent for unpaid invoices for work related to quality control and reprocessing of the respondent's goods. The appellant invokes a choice of court clause in favour of the courts of Tongeren, Belgium, that was included in its general terms and conditions, consistently printed on the back of its invoices. Contrary to Belgian law, under the autonomous European interpretation of Art 23, the fact that the recipient does not raise any objections against an invoice issued unilaterally by the other party does not amount to acceptance. Moreover, the appellant does not show that the parties had a regular trade relationship, since they entered into a contract for the first time on the occasion of the present dispute. It has not been proven that their trade relationship is governed by the general terms and conditions. The choice of court clause is invalid. In the alternative, the appellant argues that the Belgian courts have jurisdiction on the basis of Art 5(1)(a) Brussels I, since the invoices were to be paid at the agency of its bank in Genk. The Court of Appeal considers that Art 5(1)(a) is not applicable in this case, but Art 5(1)(b), second indent, is. The Court of Appeal decides that since the services were provided in Belgium, more precisely in Ghent, the Belgian courts have jurisdiction on the basis of this provision. It is true that the appellant brought the claim before the courts of Tongeren, which are situated in a different district. However, the respondent merely contested the international jurisdiction of the Belgian courts, and not the domestic territorial jurisdiction of the courts of Tongeren, in the district of Antwerp.. SHORT CRITIQUE The Court of Appeal applies the case law of the ECJ in “Segoura” (case 24/76) (without explicitly referring to that case). This case law interpreted Art 17 of the 1968 Brussels Convention and is the reason that in the new version of San Sebastian of 1986, Art 17(1)(b) was added. It would have been preferable if the Court of Appeal had instead applied Art 23(1)(b) Brussels I. Now the Court mixes up the “oral agreement evidenced in writing” on the one hand, and “practices established between the parties” on the other. The same mistake has been made before, see eg the decision of 30 March 2009 of the Court of Appeal of Antwerp. The Court of Appeal also makes a mistake in the application of Art 5(1). As we know, this article designates the place in a Member State directly, thereby obviating the need to determine the territorial jurisdiction of the court. The Court of Appeal should have stated that when a party contests the international jurisdiction of the court on the basis of Art 5(1), this possibly affects the territorial jurisdiction of the court as well.