EUPillar NV M. in liquidation v. GmbH. B.C. - AR 07/2519

Summary

English summary In its interim judgment of 14 April 2008, the Commercial Court had decided that the parties did not make a valid choice of forum (N.B.: we do not have the reasoning of the court in that interim judgment at our disposal). The court then reopened the debates so that the parties could submit their thoughts on the place of delivery under Art. 5(1)(b), first indent of the Brussels I Regulation. The plaintiff argues that the place of delivery should be determined in conformity with the lex contractus; and that the contract between the parties is governed by its general terms and conditions, which determine a place of delivery in Belgium. The defendant also believes the place of delivery is to be determined by the lex contractus, but in his view the contract is governed by German law as opposed to Belgian law. Then, the general terms and conditions of the plaintiff are not enforceable, and the place of delivery is in Germany, as determined by the Incoterm “CPT” (Carriage paid to). The Hasselt Commercial Court decides, in conformity with the case law of the Belgian Court of Cassation, that the place of delivery is a purely factual notion. The provisions of the contract are irrelevant. It appears, from the consignment notes submitted by the defendant, that the goods were delivered in Germany. Therefore, the Commercial Court dismisses the case for lack of jurisdiction. Short critique The Court of Appeal refers to a decision of the Belgian Court of Cassation of 5 December 2008. In that case, the Court of Cassation decided that the notion of “place of delivery” has an autonomous meaning and refers exclusively to the destination where the goods were actually delivered, even if the contract provided otherwise. This view does no longer stand today: in its judgment of 25 February 2010 in case C-381/08, Car Trim v. KeySafety Systems, the ECJ decided that “the first indent of Article 5(1)(b) of Regulation No 44/2001 must be interpreted as meaning that, in the case of a sale involving carriage of goods, the place where, under the contract, the goods sold were delivered or should have been delivered must be determined on the basis of the provisions of that contract. Where it is impossible to determine the place of delivery on that basis, without reference to the substantive law applicable to the contract, that place is the place where the physical transfer of the goods took place, as a result of which the purchaser obtained, or should have obtained, actual power of disposal over those goods at the final destination of the sales transaction.”