PIL instrument(s)

Case number and/or case name

BVBA E.B. v. B.V. S.S.H. - Ghent, 28 April 2004

Details of the court

Belgium, Second Instance

Articles referred to by the court

Date of the judgement

27 April 2004

Appeal history

CJEU's case law cited by the court

Summary

The parties entered into a commercial agency agreement on 20 October 1993. The appellant was the agent of the respondent on the Belgian and Luxembourg markets, for the distribution of games and toys. The respondent unilaterally terminated the agreement on 31 December 1997. The appellant claims a termination indemnity of 61,918.32 EUR and a goodwill indemnity of 58,200.09 EUR. The first judge declined jurisdiction. The appellant lodged an appeal and deems that the Belgian courts have jurisdiction on the basis of the Belgian Agency Act of 13 April 1995. DECISION OF THE COURT In the original agency agreement, the parties made an explicit choice of law in favour of Netherlands law, but they did not make a choice of court. The Court of Appeal considers that the new Brussels I Regulation supersedes the Brussels Convention with immediate effect, pursuant to Art. 3 Belgian Judicial Code and Art. 66(2)(b) Brussels I. Pursuant to Art. 5 Brussels I, a person domiciled in a Member State may, in another Member State, be sued in matters relating to a contract, in the courts for the place of performance of the obligation in question. For the purpose of this provision and unless otherwise agreed, the place of performance of the obligation in question shall be, in the case of the provision of services, the place in a Member State where, under the contract, the services were provided or should have been provided. The activity of a commercial agent, who contacts clients and places orders on behalf of his principal, is a provision of services within the meaning of that provision. Therefore, it must be assumed that the Belgian courts have jurisdiction over the claim for a termination and goodwill indemnity of a commercial agent established in Belgium. Short critique The proceedings in this case were initiated, in first instance, by a writ of summons on 15 December 1997. This case falls within the scope of the Brussels Convention. Art. 66(1) Brussels I clearly states that “this Regulation shall apply only to legal proceedings instituted and to documents formally drawn up or registered as authentic instruments after the entry into force thereof.” The Regulation entered into force on 1 March 2002. The Court of Appeal was confused by Art. 66(2)(b) of the Regulation, which pertains only to the recognition and enforcement of judgments, not to the rules on jurisdiction.