EUPillar BV Patisserie Jack Heesen v NV De Brandt Dairy International - 2007/AR/2989

Summary

On 2 May 2002, the respondent (claimant in first instance) entered into a contract with BV Tanis Banket for the sale of 120,000 kg of butter. 12,000 kg of this was destined for the appellant. The respondent made three deliveries of 4,000 kg each. The delivery notes, which were signed by the appellant, stated that the delivery was made on the basis of Regulation (EC) 2571/97. It appears from the invoices that Heesen paid duty-free prices. On 19 March 2003, the Dutch Ministry for Agriculture let the respondent know that Heesen wasn’t registered as a processor, and that it couldn’t benefit from subsidies. The respondent then issued an invoice of 13,920 EUR. The appellant failed to pay this invoice. The respondent sued the appellant before the Commercial Court of Dendermonde. The respondent argues that the Belgian courts have jurisdiction on the basis of Art. 23 Brussels I. The respondent submits a copy of its general terms and conditions, which include a choice of court clause in favour of the courts of Dendermonde, Belgium. These general terms and conditions were printed on the back of the invoices issued by the respondent. However, the Court notes that the first three invoices sent by the respondent did not contain a reference to these general terms and conditions. Only the fourth invoice, the lay-out of which differs completely from the previous three, contains such a reference. The agreement between the parties as required by Art. 23 Brussels I cannot be inferred from the absence of any objections to the general terms and conditions raised by the recipient, unless it is established that the recipient consented with a practice which the parties have established between themselves. Such a practice can only be established when the parties have adopted a practice for a sufficiently long time so that they created obligations for the future. The contract for the delivery of 12,000 kg of butter was the first transaction that ever took place between the parties. The fact that this transaction gave rise to four different invoices does not establish a practice between the parties. The respondent does not show either that the choice of court clause was in a form which accords with a usage in international trade or commerce. The respondent refers to the evidentiary value of the invoice in Belgian commercial law. The respondent also argues that it is common, in international commerce in general, to print general terms and conditions on the back of an invoice. That is not sufficient. The choice of court clause is not valid. Both the invoices and the delivery notes mention the Incoterm “DDP” (Delivered Duty Paid), which means that the seller is responsible for the delivery of the goods at their destination in the country of the buyer. The goods were delivered in Brunssum, The Netherlands. Therefore, the Dutch courts have jurisdiction on the basis of Art. 5(1)(b), first indent Brussels I. The Court of Appeal declines its jurisdiction. Short critique This is a correct application of Brussels I. In line with the other Belgian case law that can be found on this subject, the Court of Appeal decides that one transaction between the parties is insufficient to establish a “practice” within the meaning of Art. 23(1)(b), even if that transaction gave rise to multiple deliveries and multiple invoices. As to the application of Art. 5(1)(b), first indent, the Court of Appeal takes account of the Incoterm used by the parties to determine the place of delivery of the goods. This is in line with the future Electrosteel case of the ECJ (C-87/10).