PIL instrument(s)

Case number and/or case name

SCRL X. v. Y. - JP Bruxelles, 14 November 2006

Details of the court

Belgium, First Instance

Articles referred to by the court

Date of the judgement

13 November 2006

Appeal history

CJEU's case law cited by the court

Summary

The plaintiff demands the payment of an unpaid invoice and a certificate as European enforcement order, if his claim proves to be successful. The plaintiff agreed with the defendant that he would publish an advertisement of the vintage wine which the defendant produces, under the condition that the defendant’s wine would pass a taste test. The defendant failed to enter an appearance, but since the defendant is domiciled in a Member State (France), the court proceeds to examine its jurisdiction ex officio (cf. Art. 26(1)). The Justice of the Peace finds that the courts of Brussels have jurisdiction on de grounds of a choice of forum clause that is – in the judge’s opinion – in accordance with Art. 23(1)(a) and (b) of Regulation 44/2001. The choice of forum clause was written in the general conditions on the reverse side of the contract and the defendant had never contested this practice. Moreover the invoice also contained the choice of forum clause in the general conditions on its reverse side. According to Art. 23(1), jurisdiction granted by a choice of forum clause shall be exclusive unless the parties have agreed otherwise, which they have not done. Short critique: The Belgian court here actually applies Belgian criteria to determine whether the choice of court clause in the general terms and conditions of the claimant was valid or not. The judge does refer to Art 23 Brussels I, and it is also laudable that that the court examines its jurisdiction of its own motion even though the defendant failed to enter an appearance. However, the signed contract between the parties did not contain a reference to the general terms and conditions printed on the back of the contrac. The court therefore could not have withheld the validity of the clause under Art. 23(1)(a). As to Art. 23(1)(b), the court merely states that the defendant never contested the general terms and conditions and that therefore they are deemed to be accepted. That is indeed the standard under Belgian law; However, in the light of Brussels I, the court should have examined whether there were prior dealings between the parties so that a practice could have been established between them.