EUPillar M. NV v. Mr. K. - AR 02/1058 - Kh. Hasselt, 15 May 2002

Summary

The case relates to the unpaid purchase price of printed materials delivered by a Belgian printer to a German client. The general conditions of sale provide that the courts of the territory where the supplier is established are competent and that payments should be made in cash at the domicile of the supplier. 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). The Court considers that according to international treaties, the supply of printed materials is to be considered as a sale of goods. 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. The Court reopens the debates on a different question in relation to Art. 19 of the Service Regulation. 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