EUPillar D. De B. v GmbH H.-G. - Gent, 1 February 2012

Summary

Before the first judge the appellant claimed the payment of the unpaid portion of the purchase price due on invoices for the supply of goods. The general terms and conditions at the bottom of these invoices contained a choice of court clause designating the Justice of the Peace of Zomergem and the courts of Ghent. However, the first judge declined his jurisdiction. Before the court of appeal the appellant argues that a long-term trade relation existed between the parties, and that the choice of court clause in its general terms and conditions was therefore a practice which the parties had established between themselves (in accordance with Art. 23(1)(b) Brussels I Regulation). Moreover, it was submitted that the defendant had never challenged these general terms and conditions. The appellant submits a large number of supporting documents. However – as stated by the court – these documents confirm that the trade relation between the parties was conducted exclusively in German. The general terms and conditions on the other hand were exclusively in Dutch. The Court considers that a foreign recipient of an invoice cannot be bound by a choice of court clause in the general terms and conditions on the invoice, if the invoice is not issued in a language that he understands, regardless of the existence of practices which the parties have established between themselves. The defendant company argues that the persons authorised to act on its behalf, do not understand Dutch. The contrary must be proven by the appellant. The mere fact that the Dutch and German languages exhibit many similarities both in form and in content and pronunciation is insufficient. The fact that the defendant did not take the initiative to obtain a translation of the relevant text is an invalid argument. Therefore the Court declines its jurisdiction. The appeal is dismissed. Short critique This case is in line with other Belgian case law which considers the language of the recipient and of the choice of court clause respectively to be a validity requirement under Art. 23(1)(b) Brussels I.