EUPillar Pierre Wagner GmbH v Party World BVBA - 2004/AR/791

Summary

The appellant entered an appearance before the first judge, but only in order to contest the jurisdiction (Art. 24 Regulation 44/2001). The fact that the appellant submitted a counterclaim – as a secondary consideration – does not change this. On 22 March 2002, the parties concluded a framework agreement for the production and delivery of carnival costumes. This framework agreement contained a choice of court clause. Under Article 23 of Regulation 44/2001, the courts chosen by the parties have exclusive jurisdiction, provided that at least one party is domiciled in the territory of a Member State, and unless the parties agreed otherwise. The Court notes that the wording of the choice of forum clause unambiguously shows that the parties assumed that their agreement was subject to German law and that the courts of Mayen (Germany) were designated to hear disputes – but also that the parties decided to deviate from this general principle if and when the conditions cited in the second part of the clause are fulfilled. The second part of the choice of court clause reads: “When the [defendant] carries out the agreed deliveries and the [appellant] fails to comply with his obligation to pay, this payment arrangement shall be governed by Belgian law and the court of Aalst shall have jurisdiction.” These cumulative conditions are not fulfilled since the defendant did not comply with his obligation to deliver. The appellant states that only 30% of the ordered goods had been delivered on the agreed date, while the defendant himself admits that only 90% of the goods had been delivered. Due to this the Belgian courts have no jurisdiction to take cognisance of the alleged claims. Consequently, the appeal alleging the incompetence of the Belgian court is well-founded. Short critique: The court correctly applies art. 24 and 23(1)(a) Brussels I.