EUPillar NV B.T. v GmbH E.N. - Kh. Turnhout, 25 October 2013

Summary

The claimant alleges that the German defendant accepted its general terms and conditions, including a choice of court clause. These general terms and conditions appear on the back of its invoices, in Dutch and French. In principle parties are bound by forum selection clause in general terms and conditions, if previous transactions between the parties were also governed by these terms and conditions. If parties regularly encounter the same general terms and conditions, it is assumed that the parties were aware of the choice of court clause included in these terms and conditions. If they never contested the general terms and conditions, they are deemed to have agreed with the choice of court clause. In casu the parties had a longstanding commercial relationship. However, the parties’ language of choice was German. Both the invoices and the e-mail correspondence between the parties are in German. The general terms and conditions are therefore not enforceable as against the recipient. The place of delivery of the goods is in Germany. The Belgian courts do not have jurisdiction on the basis of Art. 5(1) Brussels I Regulation either. The court dismisses the case for lack of jurisdiction. Short critique of the case There are other cases where the court decided it could not enforce the general terms and conditions of the seller because of the language of the recipient. See e.g. Gent, 9 April 2008, RABG 2008, 959; Kh. Hasselt 8 May 2007, RABG 2008, 954, RW 2007-08, 1047.