EUPillar Joined cases A/12/03632 and A/12/03692 - B. B. BVBA v. T. BV, M. BV and H.G.V.; B. v T. BV -

Summary

T. BV is the owner of the project, BB. is the head contractor. BB. subcontracted part of the work to M. and B. The captain of the ship of M. made a mistake which caused damages provisionally estimated by T. at 12,260.90 EUR, for which it sued BB. Meanwhile, T. refused payment of 3 invoices issued by BB., so that the letter also sued T. in payment. Since BB. did not receive the payment from T., it also decided not to pay B. and M. B. made use of an option provided by Belgian law to sue the client (ie T.) directly, even though it only has a contract with the principal (ie BB.) (the direct action” provided by Art 1798 Civil Code). 1. M.’s general terms and conditions include a choice of court clause in favour of the Rotterdam courts, in The Netherlands. The contract between M. and BB. was entered into in 2012. The parties had also collaborated previously for the first phase of the project, when they used the same contractual documents. M. had invited BB. to make a quotation. The general terms and conditions of M. were attached to that email. On 28-29 February, the parties signed a separate agreement on paper, which provided that the Agreement includes, among other documents, the “Standard Terms and Conditions M. 2010” Thus it is clear that: BB. expressly agreed to the terms and conditions of M. and BB. received a copy of these general terms and conditions before the agreement was made. BB. argues that it did not sign the general terms and conditions and received them only by email. The Court does not accept these objections and concludes that the requirements of Art 23(1)(a) are fulfilled. 2. The “direct action” of B. against T. : B. refers to the general terms and conditions of the principal contractor, BB., which include a choice of court clause in favour of the Belgian courts. However, there is no contract between B. and T. It is a feature of Belgian law that a subcontractor can rely on the remedies of the principal against the client, but the validity of a choice of court clause in a cross-border case such as this one must be examined in the light of Brussels I. The general terms and conditions of BB. do not include a stipulation for the benefit of third parties either. The Court then examines its jurisdiction on the basis of Art 5(1) Brussels I. The Court deems that the direct action of a subcontractor is a “matter relating to contract” within the meaning of the aforementioned Article. The direct action allows a third party to a contract to derive a personal right from that contract against the debtor of its debtor. This legal mechanism is concerned with the exercise – by a third party – of a right which arises from a contract. While this broad interpretation of the term “contract” does not sit well with the definition given by the ECJ in its Handte judgment (case C-26/91, para. 15) The ECJ itself seems to have adjusted its criteria in the later Fahuil-case (C-265/02), where it decided that it is a matter for the national court to establish whether the relationship between the parties to the principal agreement permitted the principal, on behalf of the other party, to enter into a contract with a third party. The Court decides that the intervention of B. was foreseeable. At the time of the conclusion of the contract, T. knew that its contractual party, BB., would assign part of the job to subcontractors. BB. itself did not own the necessary vessels to conduct the work, for example. Moreover, T. could foresee that its agreement with BB. would be governed by Belgian law, which provides for a direct action of the subcontractor against the client. Therefore, T. freely assumed its obligation against B. and the case is a “matter relating to contract”. The diving services were provided by B. on Belgian territory. Pursuant to Art 5(1)(b), second indent, the Belgian courts have jurisdiction over the claim of B. against T. FOR APPLICABLE LAW AND SHORT CRITIQUE, SEE NEXT ENTRY FOR THIS JUDGMENT