EUPillar Drukkerij Moderna NV v. A2 Reclame Studio’s VOF

Summary

The case relates to an order for printed materials delivered by the claimant to the defendant. After the delivery, the defendant asks the claimant to redo because they are not satisfied with one of the colours on the original print. The claimant argues it is not responsible for the deviation in colour. The defendant contests the jurisdiction of the Belgian courts, referring to a choice of court clause in its general terms and conditions which confers jurisdiction on the courts of The Netherlands. The claimant refers to its own general terms and conditions, which provide that courts of the place where the supplier is established have jurisdiction. The contract between the parties consists of the initial offer sent by the claimant and the subsequent acceptance, by letter, by the defendant. The initial offer did not mention that the general terms and conditions of the printer are applicable. The order confirmation sent by claimant did refer to its general terms and conditions, but this document was never signed by the other party and cannot be used in court. The defendant sent its acceptance accompanied by the mention that its general terms and conditions are applicable and have been deposed at the Chamber of Commerce of Dordrecht, The Netherlands, where they can be consulted. In principle, the general terms and conditions of the defendant are applicable. However, since the claimant had no effective knowledge of these terms, these are not enforceable as against the claimant. The general terms and conditions of the claimant could be enforceable as against the defendant, if they are in a form which accords with practices which the parties have established between themselves pursuant to Art. 23(1)(b). The defendant submits two invoices which include its general terms and conditions, dating from November 2001. The Court decides that two invoices are insufficient to establish a practice between the parties. Next, the Court examines the application of Art. 5(1)(a) of the Brussels I Regulation, which confers jurisdiction on the courts for the place of performance of the obligation in question. The obligation in question is the contractual obligation forming the basis of the legal proceedings, in this case the payment of the invoice. The place of performance of the obligation in question must be determined in accordance with the rules of private international law of the forum. In the absence of a forum selection clause in the works contract between a Dutch client and a Belgian contractor, the applicable law is determined in accordance with the 1980 Rome Convention on the Law Applicable to Contractual Obligations. Pursuant to Art. 4(2) Rome Convention, it shall be presumed that the contract is most closely connected with the country where the party who is to effect the performance which is characteristic of the contract has, at the time of conclusion of the contract, his habitual residence. It is presumed that the characteristic performance is the performance of the party whose obligation does not consist of the payment of a sum. The characteristic obligation in the present case is performed by the supplier whose habitual residence is in Belgium. According to Art. 1247 Belgian Civil Code, debts are to paid at the debtor’s place. The obligation must be performed in The Netherlands. Therefore, the Belgian courts do not have jurisdiction to order the payment of the invoice. Short critique The Court applies Art. 5(1)(a) to a contract for the delivery of printed materials. The Court failed to examine whether this contract could be characterised as a contract for either the sale of goods or the provision of services within the meaning of Art. 5(1)(b) Brussels I.