EUPillar Pears Plastics NV v. Maryse Megel IKV - AR 03/211

Summary

The original plaintiff (P.P.) is a music company which represents the intervening third party, P.R. The original plaintiff withdraws in favour of P.R. P.R. delivered goods to the defendant on about 7 occasions in the course of the years 2000 and 2001. P.R. stated in its request for intervention that according to the CMR consigment letters, the goods were delivered in Antwerp, except for one invoice (d.d. 31 October 2001), where the goods were delivered in Saarbrücken. At the hearing it was submitted that the final destination of the goods, while they were delivered in Antwerp, was actually in Germany. The documents submitted to the court do not sufficiently support this. P.R. invokes a choice of forum clause in its general conditions of sale conferring jurisdiction to the courts of Hasselt, Belgium. The Court considers that the claimant did not show that the parties had any other dealings than those subject to the present claim. Furthermore, the claimant fails to show that the defendant knows and understands Dutch. Therefore, the choice of forum clause does not fulfil the formal requirements of Art. 23 Brussels I Regulation. 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 is then 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). Since this case pertains to multiple obligations of payment, where the final place of destination is not clear (except for one of the invoices), the place of delivery could possibly be outside of the EU. The question is of these actions are related – especially in view of the Leathertax judgment of the ECJ. The Court reopens the debates. For a short critique, judgment of Rechtbank van Koophandel, Hasselt, 16 April 2003.