PIL instrument(s)

Case number and/or case name

M. BVBA v. S. GmbH - 03450/03 - Kh. Kortrijk, 15 January 2004

Details of the court

Belgium, First Instance

Articles referred to by the court

Date of the judgement

14 January 2004

Appeal history

CJEU's case law cited by the court

Summary

The parties’ explanations show that they had a long-standing and regular commercial relationship. However, this relationship did not relate to agreements whereby the defendant bought goods from the claimant. On the contrary – the claimant was the distributor of the products of the defendant in the region of “Wevelgem” – therefore, it was the claimant who bought goods from the defendant. From this previous relationship, cannot be deduced that the defendant ought to have known and accepted the general conditions of sale of the claimant. Moreover, the transaction between the parties was not a usual sales agreement. The claimant did not just sell goods to the defendant, but shipped back stocked and unsold goods which he had acquired from the defendant over the course of the years. The claimant cannot rely on the jurisdiction clause in its general conditions of sale to conclude that the courts of Kortrijk, Belgium have jurisdiction. The defendant refers to its own “Allgemeine Geschäfstbedingungen” or general terms and conditions. The claimant argues that these general terms and conditions relate to the sales made by the defendant to the claimant and not to the opposite situation which is the subject of these proceedings. The Court considers that the general terms and conditions of the defendant are wider in scope than the general conditions of sale of the claimant. In the preamble of the general terms and conditions of the defendant, it is stipulated that they apply to “all of its orders, deliveries and performed services”. The jurisdiction clause grants jurisdiction to the courts of Türkheim, Germany (i.e. statutory seat of the defendant), without prejudice to the right of the defendant to sue the claimant in the place of their statutory seat. Short critique The court correctly applies Art. 23(1)(b) Brussels by determining whether a practice between the parties has been established, and therefore whether there was a long and continuous trade relationship between the parties.