EUPillar NV Euro Boat v. SARL Team Boat - A/02/00464

Summary

The claim relates to the unpaid purchase price of an order of three “APEX” boats. The claimant claims the price plus interests, and also accuses the defendant of being complicit to a breach of contract by contracting directly with the grantor - the company that accorded the exclusive distribution of these boats in Northern Europe. The grantor, NV Costa Rican Inflatables, intervenes voluntarily in the proceedings to contest the exclusivity of the distribution agreement. The claimant avers that the courts of Veurne, Belgium have jurisdiction in accordance with a choice of forum clause in its general conditions printed on the reverse side of an uncontested – and therefore fully accepted – invoice. The Commercial Court of Veurne states that it must consider its international jurisdiction over the two claims separately (the court refers to the Kalfelis v. Schröder judgment of the ECJ). The claim for the unpaid purchase price. The Court examines if the requirements of Art. 23(1)(b) have been fulfilled. The Court decides this is not the case because one condition is lacking. It is insufficient to print the general conditions on the back of a document (even if there is a reference to these general conditions on the front). The party must also explicitly refer to these general conditions in the course of their commercial relationship, in an order confirmation, a letter accompanying the invoice, in a reminder or in the course of previous proceedings. The claimant also fails in the burden of proof of a usage in the particular trade concerned which the parties are or ought to be aware of, in conformity with Art. 23(1)(c). Art. 2 and Art. 5(1)(b) do not grant jurisdiction to the Belgian courts either. The claim for complicity to breach of contract. The claimant invokes Art. 5(3). The Court is of the opinion that the alleged unlawful conduct of the defendant could only have been committed either at her own statutory seat or at any other place where the defendant would have come together with the grantor, NV Costa Rica Inflatables, to discuss the alleged breach of contract. The claimant does not prove that this place is situated in Veurne, Belgium. The claimant argued that the consequences of the breach would be felt at her own statutory seat (Nieuwpoort in the district of Veurne, where the claimant would sell less boats because of the agreement between the defendant and the grantor). According to the Court, this interpretation of Art. 5(3) and the case law of the ECJ is too broad and undermines the general principle of Art. 2 completely. Finally, the Court considers it does have jurisdiction on some of the claims and counter-claims brought between the parties. Since the claimant is also defendant on the claim brought by the voluntary intervention of NV Costa Rica Inflatables, and the claimant is domiciled in Belgium, the Belgian courts have jurisdiction on this matter (Art. 2). However, the Court wonders if these claims aren’t so closely connected to the main claim that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings. The Court re-opens the debate so that the parties could present evidence on the question of Art. 28 Brussels I Regulation (related actions) and the consequences on the international jurisdiction of the Belgian courts. The Court also suggests the parties should consider to appear voluntarily before the courts of France, according to the Court solely competent to take cognisance of the main claim and therefore best suited to hear every aspect of the case. Short critique The Court correctly applies Brussels I.