EUPillar NV I.P.B. v. Greschalux GmbH - A.R. 5491/2003

Summary

The defendant is a producer of skylights and had placed an order with the claimant for the delivery of 144 polyester sheets used for the production of the skylights. The agreed place of delivery was “Frei Haus”, i.e. the seat of the buyer. After a few delays and changes to the delivery, the claimant finally sues the defendant for unpaid invoices, and the defendant submits a counterclaim for the costs resulting from the delays. The agreed place of delivery in Frei Haus implies that the Belgian courts do not have jurisdiction. The claimant invokes Art. 5(1)(b) of the Brussels I Regulation: “for the purpose of this provision and unless otherwise agreed, the place of performance of the obligation in question shall be: in the case of the sale of goods, the place in a Member State where, under the contract, the goods were delivered or should have been delivered …” The court interprets this disposition as follows: the Brussels I Regulation offers freedom of contract to the parties, who can decide for themselves where a specific obligation should be performed. Art. 5(1)(b) is then invalidated. Art. 5(1)(b) is applicable only where the parties determined the place of delivery and did not at the same time determine the place of performance of the obligation in question in the dispute at hand. The claimant refers to its general conditions of sale where it is stipulated that the invoices are to be paid in Waregem (Kortrijk, Belgium). The defendant contests the enforceability of these conditions of sale. The Court examines the acceptance of the general conditions of the seller, not in accordance to Belgian law, but in accordance with the CISG, which is the law applicable to the international sale of goods, including the agreement between the parties. Since the CISG does not provide for the tacit acceptance of the general conditions printed on the back of an invoice, the conditions of the seller cannot be enforced as against the buyer. The Belgian courts do not have international jurisdiction. Short critique The court does not interpret Art. 5(1)(b) correctly, since the court decides that the parties can derogate from Art. 5(1)(b) by agreeing on a place of payment. It should be noted that this is an early decision (from 2004) and the CJEU had not yet confirmed the correct interpretation.