EUPillar A. v. B. / B. v. C. and D. - Kh. Turnhout, 6 March 2009

Summary

The summons was served on 10 December 2007. The request for joinder for the claim of indemnity was issued on 14 February 2008. The contract for the sale of goods by a seller resident in the Netherlands to a buyer resident in Belgium is governed by the CISG. Therefore, Art. 8 CISG determines the interpretation of the applicability of the general conditions of the Party B: - there is already a long-term trade relationship between the parties, a fact which has never been disputed by Party A - Party A has knowledge of the general conditions and their amendment - Party A does not oppose the general sales conditions and tacitly accepts them. Accordingly the Commercial Court concludes that the general conditions were known by Party A and that there was a consensus about these terms. The general terms and conditions of the agreement indicate that only the Court of Breda has jurisdiction to hear the case. Article 23 of the Brussels I Regulation determines that such jurisdiction is exclusive. For all these reasons, the Commercial Court of Turnhout has no jurisdiction to hear the case. Short critique The court refers to the CISG (which is the applicable law) first to determine the enforceability of the general terms and conditions of the seller. However, the choice of court clause should be examined first and separately from the other clauses in the general terms and conditions, to determine the jurisdiction of the court. It is perfectly possible that a choice of court clause is not valid in light of Art. 23 Brussels I, but that the other general terms and conditions are in view of the applicable law.