PIL instrument(s)

Case number and/or case name

NV B. v. Srl SN - AR 04279/03 - Kh. Kortrijk, 4 December 2003

Details of the court

Belgium, First Instance

Articles referred to by the court

Date of the judgement

03 December 2003

Appeal history

CJEU's case law cited by the court

Summary

The Italian defendant failed to enter an appearance. The court examines its jurisdiction ex officio. The claimant invokes a choice of forum clause on the reverse side of its invoices conferring jurisdiction to the courts of Kortrijk, Belgium. There was no reference to the general terms and conditions of the seller on the front side of the invoice. They were written in Dutch and French, while the language of the agreement between the parties was Italian. The choice of forum clause does not fulfil the requirements of Art. 23(1). The Court then examines its jurisdiction from the angle of Art. 5(1). In this dispute, the seller claims the unpaid purchase price of a sale of goods. Under Art. 5(1)(b), the place of the delivery of the goods under the contract determines the jurisdiction for every claim relating to a sale of goods. In the present case there was no written agreement between the parties on the place of delivery. According to some authors, in such a case one should fall back on the general provision of Art. 5(1)(a) (cf. Art. 5(1)(c)). According to another theory, the court should determine the place of delivery according to the applicable law. A third proposal is to take the factual place of delivery – instead of the legal or contractual place of delivery – as the connecting factor. The Court notes that it is a court of first instance and therefore does not have the power to refer to the Court of Justice for a preliminary ruling. However, the Court rejects the third proposal outright. Further, the Court notes that in this particular case the application of Art. 5(1)(a) and 5(1)(b) leads to the same conclusion. The Court determines the place of payment (the obligation in question within the meaning of Art. 5(1)(a)) and the place of delivery (cf. Art. 5(1)(b)) in conformity with the CISG. The place of payment is in Anzegem, in the district of Kortrijk, and the place of delivery is in Sint-Denijs, also in the district of Kortrijk. The Court decides it has jurisdiction. Short critique 1. This decision is in line with other Belgian case law which considers the language of the choice of court clause in general terms and conditions to be a validity requirement under Art. 23 Brussels I. 2. At a time when the ECJ had not yet handed down its judgment in Car Trim, the Commercial Court of Kortrijk carefully examines the different possible interpretations of Art. 5(1)(b), but chooses the wrong one. In this particular case, the outcome is the same, however. (Place of delivery in Belgium, therefore Belgian courts have jurisdiction).