PIL instrument(s)

Case number and/or case name

NV Geldof Metaalconstructie v. BVBA Weighing & Inspection Belgium - 47/04 R.K. - KG Kh. Kortrijk, 13 July 2004

Details of the court

Belgium, First Instance

Articles referred to by the court

Date of the judgement

12 July 2004

Appeal history

CJEU's case law cited by the court

Summary

Claimant (NV Geldof) is a metal constructor. The claimant placed an order with BVBA Weighing & Inspection Belgium (WIB) for a level indicator system. WIB is the distributor in Belgium for measurement equipment of BV Thermo Electron. The latter carried out the complete order. Claimant is not satisfied with the results and accuracy of the level indicators, and now asks the Court to appoint an expert. WIB agrees with this demand. The inspection should take place in the presence of Thermo, which is why WIB served Thermo with a request for intervention in the proceedings. Thermo contests the jurisdiction of the Belgian courts. In their distribution agreement, WIB and Thermo provided for the exclusive jurisdiction of the courts of Rotterdam, The Netherlands. This forum selection clause satisfies the formal requirements of Art. 23(1)(a) Brussels I. The courts of Rotterdam are solely competent to take cognisance of the substance of the matter. WIB refers in vain to Art. 6(2) Brussels I which stipulates that a person domiciled in a Member State may also be sued as a third party in an action on a warranty or guarantee or in any other third party proceedings, in the court seised of the original proceedings, unless these were instituted solely with the object of removing him from the jurisdiction of the court which would be competent in his case. Art. 23(1) takes precedence over Art. 6(2). The Court also considers there is a lack of a real connecting link between the subject-matter of the measures sought and the territorial jurisdiction of the Contracting State of the court before which those measures are sought. The parties confirmed at the hearing that the goods to be examined are all situated in The Netherlands. However, the Belgian court is still competent for the subject-matter of the summary procedure brought before it. The President of the Commercial Court considers that the condition of urgency is fulfilled and goes on to appoint an expert, who will have to perform certain acts in another Member State, covered by Art. 17 of the Evidence Regulation. The only thing the President of the Court cannot do, is compel Thermo to assist the inspection.