EUPillar I. NV v. C. SL - AR 02/3897 - Kh. Hasselt, 29 January 2003

Summary

The claim relates to the unpaid purchase price of sales made by a Belgian seller to a Spanish buyer. The general invoice conditions of the seller provide in Dutch only that all disputes will be settled by the courts at the statutory seat of the seller will have jurisdiction and that the invoices are to paid at the statutory seat of the seller. The Court had reopened the debates in order to allow the parties to submit evidence on the following questions: the Belgian courts have jurisdiction only when the claimant is able to prove that either (i) the parties have a longstanding and regular trade relationship and the defendant knows and understands Dutch or (ii) that the delivery took place in Belgium. The claimant argues that the parties had a longstanding and regular trade relationship on the basis of the list of invoices attached to the writ of summons. The Court responds that the claimant did not prove that the parties had trade relations other than those which are subject to the present claim. Furthermore, the claimant did not prove that the defendant knows and understands Dutch. The claimant also argues that its general conditions of sale and delivery show that the goods must be accepted and picked up at the warehouse of the seller, in Belgium. On the front of the invoices, however, there are no specifications about the terms of delivery or the transfer of risk. The Court goes on to examine the application of Art. 5(1)(b). The issue is how to interpret the given description of “the place in a Member State where, under the contract, the goods were delivered or should have been delivered”. It is said that this is a purely factual criterion, independent from the concept of “delivery” under the law of obligations and a possible transfer of risk. The place of delivery then is the place of destination of the goods, regardless of which party assumes the risk of carriage of the goods to their destination. This will often be the place where the goods are to be found and as such the ratio legis of Art. 5 is maintained. If the place of final destination is not an EU Member State, one should fall back on the general principle of Art. 5(1)(a). In those circumstances, the stipulation in the general terms and conditions that the goods are accepted and to be picked up at the seller’s warehouse, would not be sufficient to argue that the place where, under the contract, the goods should have been delivered within the meaning of Art. 5(1)(b). The Court reopens the debates on this point. Short critique We do not know how this case was finally resolved. In any event, the Court errs when it states that the place of delivery stipulated in the contract is not sufficient to establish jurisdiction on the basis of Art. 5(1)(b). The Commercial Court uses a purely factual criterion with no room even for a contractual place of delivery. (The Car Trim judgment of the ECJ had not yet been handed down at the time of the Commercial Court's decision)