EUPillar 604/2012 - Comm. Namur, 25 June 2013

Summary

The claimant sues the first defendant in payment of arrears, to be increased with default interests. The claimant seeks damages from the first and second defendants for a copyright infringement. The defendants argue that the Namur Commercial Court lacks jurisdiction and that the courts of Paris are competent on the basis of Art. 5(1)(b): the place of provision of services lies supposedly in Paris. In Wood Floor Solutions v. Silva Trade (C-19/09), the ECJ considered that “If the provisions of a contract do not enable the place of the main provision of services to be determined, either because they provide for several places where services are provided, or because they do not expressly provide for any specific place where services are to be provided, but the agent has already provided such services, it is appropriate, in the alternative, to take account of the place where he has in fact for the most part carried out his activities in the performance of the contract, provided that the provision of services in that place is not contrary to the parties’ intentions as it appears from the provisions of the contract. For that purpose, the factual aspects of the case may be taken into consideration, in particular, the time spent in those places and the importance of the activities carried out there. It is for the national court seised to determine whether it has jurisdiction in the light of the evidence submitted to it (Color Drack, paragraph 41).” In this case, the parties did not establish a written contract. The services which were provided are essentially intellectual, involving design and conceptual activity. Therefore they are provided in the offices of the provider of the service. The geographical location of these offices determines the international jurisdiction of the court. The offices are situated in Sambreville, in the district of Namur. The place of provision of services is not the place where the finished product was to be delivered, i.e. in either Paris or Rabat. Short critique The Namur Commercial Court refers to the Wood Floor Solutions case of the ECJ (C-19/09) to solve the issue of the provision of intellectual services that cannot be located physically.