EUPillar F.M.E. NV v G’s. M. Ltd and P.G.S. Ltd

Summary

Since 2004, the appellant delivered mushrooms to the defendants for distribution among British supermarkets. The appellant argues that the parties had a framework agreement of undetermined duration, to which the defendants put an abrupt end without giving sufficient weeks (between 10 and 24 weeks according to the type of delivery). The appellant initiated proceedings against the defendants on 6 April 2009. One claim was brought against G’s. M. Ltd only, in payment of an invoice which had been contested by G’s. M. Ltd. The second claim was brought against both defendants seeking compensation for the allegedly wrongful termination of the contract. The first judge dismissed the case for lack of jurisdiction. F.M.E. NV appealed. In an interlocutory decision of 4 June 2012, the appeal was allowed. It was decided that, with regard to the first claim, the choice of court clause in favour of the Belgian courts in the general terms and conditions of the appellant corresponds to a form which accords with practices which the parties have established between themselves. Because of the daily deliveries, the appellant was able to produce over 200 paid and uncontested invoices. The second claim, however, is not related to unpaid invoices but to the wrongful termination of a framework agreement for daily deliveries to be made in the United Kingdom. The characteristic performance lies within the UK – the appellant said as much in the original writ. There is no choice of court clause applicable to the framework agreement. The Court of Appeal examines its jurisdiction from the angle of Art. 5(1)(b), first indent and 5(1)(b), second indent. If the agreement is analysed as a sales contract, the place of delivery was undoubtedly in the UK. If the agreement is deemed to be a contract for the provision of services, the services were also provided in the UK. The fact that a few services, such as the quality control, were carried out in Belgium, does not change this. Where services are provided in several Member States, the court which has jurisdiction to hear and determine all the claims arising from the contract is the court in whose jurisdiction the place of the main provision of services is situated (C-19/09)). Art. 5(1)(a) does not grant jurisdiction to the Belgian courts either (cf. C-420/97). There is no independent ground of jurisdiction granting jurisdiction to the Belgian courts over the second claim. In its interlocutory judgment the Court of Appeal had reopened the debates so that the parties could submit their view on the question of related actions (Art. 28 Brussels I). The relatedness of the actions must not be examined under Belgian law, but under European law. Actions are deemed to be related where they are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings (Art. 28(3)). In the present case, there is no risk of irreconcilable judgments. Moreover, even if there was, Art. 28 is applicable only where related actions are pending in the courts of different Member States, which is not the case here. This article does not provide an independent ground of jurisdiction. Cf. ECJ 24 June 1981, Elefanten Schuh v. Jacqmain, 150/80, considerations 19 and 20 In conclusion, the Court of Appeal has jurisdiction over the first claim, but not over the second claim. Short Critique: the court correctly applies Brussels I.