PIL instrument(s)

Case number and/or case name

C. BVBA v 2. BVBA - Antwerpen, 19 November 2012

Details of the court

Belgium, Second Instance

Articles referred to by the court

Date of the judgement

18 November 2012

Appeal history

CJEU's case law cited by the court

Summary

The claimant sued the defendant in payment of a series of invoices for the delivery of materials for industrial cement floor systems in the total amount of 19,798.21 plus legal interest. The defendant failed to enter an appearance. The first judge dismissed the case for lack of jurisdiction. There is no agreement conferring jurisdiction in writing or evidenced in writing. On appeal, the claimant refers to the choice of court clause in favour of courts of the district of Hasselt, Belgium in its general terms and conditions on the back of its invoices. However, the invoices that were submitted to the court as evidence do not contain any general terms and conditions on the back at all. The claimant is unable to prove its claim that the invoices contained the same general terms and conditions as those it submitted separately. Moreover, even if the invoices had included general terms and conditions, this would not have been enough to establish that the defendant had accepted them. The absence of a reaction to the invoices does not imply their acceptance. More is needed, in particular the existence of practice between the parties following from a long-standing trade relationship. The invoices submitted by the claimant cover a period stretching from November 2008 to March 2009. The claimant does not show that there were any dealings prior to the transactions underlying its current claim. Finally, the claimant does not prove that the choice of court clause is in form which accords with an international trade usage of which the parties ought to have been aware and which in their trade is regularly observed by parties to contracts. The claimant refers to the evidentiary value of an invoice and its general conditions in the absence of contestation, in Belgian law. This does not suffice. In the alternative, the claimant states that, according to the contract, the goods were delivered “ex works”, i.e. at the premises of the seller in Belgium. This is confirmed by the e-mail correspondence between the parties. The Court considers it has jurisdiction on the basis of Art. 5(1)(b) Brussels I Regulation. Short critique This case is a correct application of the Car Trim and Electrosteel cases of the ECJ (C-381/08 and C-87/10).