EUPillar B.-R. NV v. P. - AR 02/1132 - Kh. Hasselt, 15 May 2002

Summary

The case relates to the unpaid purchase price for sales made by Belgian seller to a Dutch buyer. The general invoicing terms and conditions of the seller provide that the courts of the district of Hasselt, Belgium have jurisdiction over disputes resulting from the agreements to which the invoices relate, and that payment should be made at the institutions of the seller in Tessenderlo, Belgium, unless otherwise agreed. On the front of the invoices, a Belgian and a Dutch bank account are indicated. The claimant does not establish any prior dealings between the parties which could help to demonstrate a practice established between themselves within the meaning of Art. 23(1)(b) Brussels I Regulation. The Court then examines its jurisdiction from the angle of Art. 5(1)(b). The claimant has not proven that the goods were or should have been delivered in Belgium. Art. 5(1)(b) stipulates that the place of performance of the obligation in question shall be, in the case of the sale of goods, the place in a Member State where, under the contract, the goods were delivered or should have been delivered – unless otherwise agreed. This agreement should be valid under the national law which governs the agreement, on the condition that there is a real connecting link with the substance of the agreement. The Court determines the applicable law in conformity with the European Contracts Convention of 1980, Art. 4(2). The characteristic performance is delivered by the Belgian seller, therefore Belgian law is applicable. According to Belgian law, the sender of an uncontested invoice does not need to prove that the recipient accepted the general invoicing terms and conditions previous to receiving the invoice. Art. 8(2) European Contracts Convention offers a possibility to the defendant to refute his acceptance on the basis of his own national law, but since the defendant failed to enter an appearance and mount a defense, the Court cannot apply Art. 8(2). The Court considers that under Belgian law, the agreement on the place of payment is valid. Therefore, the parties rightfully derogated from Art. 5(1)(b) and the Belgian courts have jurisdiction. This is not changed by the fact that the invoices mention both a Belgian and a Dutch bank account. Short critique In the Commercial Court's interpretation, Art. 5(1)(b) can be derogated from by a valid agreement on the place of payment. However, for Art. 5(1)(b), only the place of delivery is relevant. If the parties did not agree on a place of delivery; the factual place of delivery determines jurisdiction. This court later changed its case law, see B.-R. N.V. v. T. B.V. - 02/3871 - Kh. Hasselt, 4 December 2002