PIL instrument(s)

Case number and/or case name

D. NV v. B. NV - 03/4408 - Kh. Hasselt, 10 December 2003

Details of the court

Belgium, First Instance

Articles referred to by the court

Date of the judgement

09 December 2003

Appeal history

CJEU's case law cited by the court

Summary

The claim relates to uncontested invoices for sales made by the Belgian claimant to a Luxembourg company. The general invoicing terms and conditions stipulate in French and Dutch that all disputes will be settled by the competent court in Hasselt, Belgium, “without prejudice to the right of the seller to sue the buyer in the courts of his domicile”. The (signed) order forms for these sales refer on their front side to the general conditions of sale on the back. However, when an order form is signed by the other party this does not amount to an agreement with the choice of court clause mentioned on the back, where the text on the front does not explicitly refer to this choice of court clause. Therefore, there is no agreement in writing within the sense of Art. 23(1)(a). The claimant demonstrates that there were other transactions between the parties subject to the same general terms and conditions, other than those that are part of the present dispute. The choice of court clause could therefore fulfil the requirements of Art. 23(1)(b). Art. 63(2) Brussels I Regulation provides however that where the final place of delivery of the goods is in Luxembourg, any agreement conferring jurisdiction must, in order to be valid, be accepted or evidenced in writing within the meaning of Art. 23(1)(a). The claimant argues that the goods pertaining to one of the invoices (d.d. 4 August 2003) were picked up at her warehouse. The Court considers that it cannot be expected of the claimant to prove that the final destination of the goods which were picked up, is not in Luxembourg. The Court does not assume that the final place of delivery of those goods is situated in Luxembourg, therefore Art. 63(2) is not applicable and the Belgian courts have jurisdiction over that invoice. The remaining deliveries took place in Luxembourg and there it can be presumed that Luxembourg is the final place of delivery. Since the choice of court agreement does not comply with Art. 23(1)(a), the Belgian courts do not have jurisdiction over those invoices. Short critique The Court correctly applies Brussels I.