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

FOR THE FACTS OF THE CASE AND JURISDICTION, REFER TO PREVIOUS ENTRY (UNDER BRUSSELS I) FOR THIS CASE Applicable law There is no ready-made answer to the question of the law applicable to B.’s direct action against T. The lex contractus is not disputed. The principal agreement between B. B. and T. is governed by Belgian law. The subcontracting agreement between B. and B. B. is governed by Dutch law. The Court deems that the peculiar character of the “direct action” justifies that the interests of the client (i.e. T.) are kept in mind to settle this question, and that the law applicable to the principal agreement should also be applicable to the direct action arising from this agreement. In this way, the client’s legitimate expectations are safeguarded. By making a choice of law, the client can foresee whether he could be confronted with direct actions by any subcontractors. The Court finds an additional ground to support its reasoning in Art. 12(1)(b) of the Rome I Regulation, which provides that the law applicable to a contract by virtue of the Regulation shall govern in particular: the (b) performance of the contract. The parties to the principal agreement made an express choice of law in favour of Belgian law. Short critique