EUPillar V. BV v. M. NV - 2007/AR/2696

Summary

The parties are both active in the packaging industry. The parties had a long-standing commercial relationship. At one point, the respondent owed 21,590.32 EUR to the appellant. The appellant, on the other hand, claimed that it had suffered 16,720.40 EUR in damages because of a strike in 2006 by the respondent’s staff. The respondent sued the appellant on 15 March 2007 in payment of the outstanding invoices. The parties agreed to limit their case to the difference between both claims, ie 5.229,92 EUR. The first judge decided that the trade relationship between the parties was governed by the general terms and conditions of the claimant. These general terms and conditions included a choice of court clause in favour of the Belgian courts. The defendant, a Dutch company, contests the international jurisdiction of the Belgian courts again on appeal. The Court considers the following: The parties had a commercial relationship since 1997. On the orders that were placed in 1997, the appellant stated that its own general terms and conditions were applicable. These general terms and conditions were printed on the back of its orders and filed at the Registry of the Haaglanden Chamber of Commerce. From 2000, the appellant no longer made that statement on its orders. The appellant claims that it still printed its general terms and conditions on the back, but that is not proven. It is certain that at least from 2002 on, the appellant no longer included its general terms and conditions on the order itself. They were only filed with the Chamber of Commerce. The appellant never communicated the general terms and conditions that are filed at the Chamber of Commerce. The appellant cannot prove that these are the same as the general terms and conditions it printed on its orders in 1997. Over the years, the appellant unreservedly paid the invoices of the respondent. These invoices stated that its own general terms and conditions applied – even if the client were to join diverging terms and conditions to its orders. The Court decides that the fact that the appellant paid the invoices does not show it agreed with the general terms and conditions of the respondent, if he consistently referred to its own general terms and conditions. Therefore, there is no valid choice of court clause that fulfills the requirements of either Art. 23(1)(a), 23(1)(b) or 23(1)(c) Brussels I. The Court then applies Art. 5(1) Brussels I. The law applicable to the contract is the CISG. Both the obligation of delivery of the goods and the obligation of payment have the be performed in Belgium. Therefore, the Belgian courts do have jurisdiction. Critique: The Court of Appeal has to determine the validity of a choice of court clause included in the general terms and conditions of the Belgian respondent (claimant in first instance). The Dutch appellant (defendant in first instance) considers that the long-standing commercial relationship between the parties was governed by its own general terms and conditions. This is a typical case of a “battle of the forms”. In the end, the Court of Appeal decides that the parties did not reach a choice of court agreements. This is in line with the rationale behind Art. 23 Brussels I (see e.g. ECJ case 24/76, Salotti, § 7 or C-116/02, Gasser, § 50: “The purpose of the formal requirements imposed by Article 17 is to ensure that the consensus between the parties is in fact established). The Court of Appeal then examines its jurisdiction on the basis of Art. 5(1) Brussels I. It determines the place of performance of the obligation in question in light of the law applicable to the contract (here, the CISG). The facts of the case make it more likely however that the parties concluded a series of sales agreements, so that the Court could or should have applied Art. 5(1)(b), first indent. The Court does not even determine the “obligation in question”, but states that both the place of delivery and the place of payment were in Belgium.