EUPillar BV D.K. v NV B. - Kh. Ieper, 27 June 2011

Summary

FACTS OF THE CASE On 17 October 2007, the claimant, BV D.K., entered into a contract with another company, D.C., for the delivery of wood pellets. D.C. did not perform its obligations under the contract, which caused damages to the appellant of approximately 57,000 EUR. D.C. was then taken over by the defendant, NV B. The claimant reduced its claim against the defendant to 48,500 EUR. The defendant did make at least three deliveries, but the claimant alleges the wood pellets were unusable and refuses to pay the invoices issued by the defendant. The defendant then sued the claimant before the Commercial Court of Ieper, Belgium on 2 June 2010 – the latter grants its claims in a default judgment on 25 October 2010. However, on 10 July 2010, the defendant had also brought proceedings before a court in Dordrecht, The Netherlands, thinking that the service of the writ of 2 June 2010 was void. Before the courts in The Netherlands, BV D.K. argued that only the courts of Belgium have jurisdiction. The proceedings were struck from the record in The Netherlands because the defendant in that case preferred to continue the proceedings in Belgium. In the case at hand, the claimant, BV D.K., brought third-party proceedings in order to reform the default judgment of the Commercial Court of Ieper of 25 October 2010. The claimant invokes that the writ of summons is invalid. In the alternative, it claims the Belgian courts lack jurisdiction. Finally, it enters a counterclaim against the NV B. For its part, the NV B. asks for the judgment of 25 October 2010 to be confirmed. DECISION OF THE COURT The Court decides that the original summons is valid, in accordance with the Regulation (EC) No 1393/2007 of the European Parliament and of the Council on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters. The Court then examines BV D.K.’s second argument: that the Belgian courts lack jurisdiction since the parties did not agree on a choice of court clause. In first instance, the defendant failed to enter an appearance. The Court had to examine its jurisdiction of its own motion pursuant to Art. 26(1) Brussels I Regulation. The general terms and conditions of sale of the NV B. provide that all disputes shall fall under the exclusive jurisdiction of the courts of the domicile of the seller. The Ieper Commercial Court considers that a choice of court clause is valid when it is in a form which accords with practices which the parties have established between themselves, i.e. when the parties regularly encountered the same general terms and conditions during previous dealings, so that they are assumed (except for wrongful negligence) to have knowledge of the choice of court clause included therein. If they never contested the general terms and conditions of the other party, they are assumed to have consented to them. NV B. has sent three invoices to the BV D.K., who did not respond. Neither did the BV D.K. respond to the written notices of default that followed. In the absence of a reaction, it is presumed that BV D.K. accepted the general terms and conditions on the invoice, in accordance with Article 25 of the Belgian Commercial Code. The Court adds that the attitude adopted by BV D.K. is paradoxical and frivolous. Now it contests the jurisdiction of the Belgian courts, while it maintained that the Belgian courts were solely competent in the Dutch proceedings. The Belgian courts of Ieper have jurisdiction on the basis of the choice of court clause included in the general terms and conditions of the seller. Short critique In this case opposing a Belgian seller and a Dutch buyer, the Commercial Court of Ieper applies Belgian law (the Belgian Commercial Code) to determine whether a choice of court clause included in the general terms and conditions of the seller. This is wrong, since Art. 23 of the Brussels I Regulation should receive an autonomous interpretation.