PIL instrument(s)

Case number and/or case name

E-Max NV v. P. GmbH - 03/3758 - Kh. Hasselt, 4 February 2004

Details of the court

Belgium, First Instance

Articles referred to by the court

Date of the judgement

03 February 2004

Appeal history

CJEU's case law cited by the court

Summary

The defendant fails to enter an appearance (again). The Court had reopened the debates in its decision of 19 November 2003 to allow the claimant to prove whether the goods had been delivered or picked up in Belgium. Only in that case the Belgian courts would have international jurisdiction. The claimant now argues that the parties can derogate from Art. 5(1)(b) by agreeing on a different place of payment, e.g. at the domicile of the party receiving the payment. Alternatively, the claimant refers to its invoicing terms and conditions which provide for an “ex factory” delivery. The Court rejects both arguments. On the front of the invoice issued by the seller, it was stated that orders of over 500 kg would be delivered at the home of the buyer. This derogates from the general terms and conditions. For the sake of completeness, the Court also considers that the general terms and conditions were not written in the language of the defendant and that it is therefore not proven that the latter had accepted these conditions. The Belgian courts lack jurisdiction. Short critique: The Court correctly applies Brussels I. This decision is also in line with other Belgian case law which considers the language of a choice of court clause to be a validity requirement under Art. 23 Brussels I, although in this particular case it did not have an impact on the outcome for the case.