EUPillar A. v NV P. - Brussels, 25 March 2013

Summary

In first instance, the appellant, A., had been ordered to pay 795,955.00 EUR (to be increased with late payment interests of 8,5%) for an unpaid invoice of an order of photovoltaic cells. On appeal, A. argues – before presenting its arguments on the substance of the matter – that the first judge did not have international jurisdiction over this case. On 10 May 2011, NV P. sent a quotation to A. for an order of 250,000 photovoltaic cells. This document was signed by A. According to the e-mails exchanged between the parties, the goods were to be delivered in Poland. The appellant argues that this document does not constitute an actual order and contests the invoice related to the quotation. Even though the appellant contests that a contract was made between the parties, the Court considers it is still allowed to examine the validity of the choice of court clause invoked by NV P., without deciding on the existence of the contract. The quotation sent by NV P. on the 10th of May refers to P.'s general terms and conditions, which can be consulted on its website. P. refers to the Colzani judgment of the ECJ (case 24/76). However, as stated by the Court, in Colzani the general terms and conditions of the seller were printed on the back of a document. In the present case, the mere reference to a website does not offer a sufficient guarantee that A. agreed with the choice of court clause. The mere reference to general terms and conditions which are not included in the trade documents (in casu, the quotation) themselves, does not suffice to conclude that the parties reached an agreement even if they are traders or merchants. From the mere notification of the place where these general terms and conditions can be found, no tacit acceptance of these conditions can be deduced – even if the document was signed by the other contracting party. NV P. does not show that A. agreed with its general terms and conditions during any previous dealings. Moreover, the availability of the general terms and conditions on the seller’s website does not amount to a “communication by electronic means” within the meaning of Art. 23(2) Brussels I Regulation. The choice of court clause has not been transmitted electronically to the other party. The publication on a website is ephemeral, since the web page could be changed unilaterally at any moment. The NV P. does not prove that the validity requirements of Art. 23(1)(b) or (c) have been fulfilled either. The courts of Belgium lack jurisdiction. Short critique This decision is interesting because it is one of the only published Belgian cases on general terms and conditions that are available on a website/through a hyperlink in the contract. The mere reference to a website is not enough, because the general terms and conditions on a web page can easily change. Better is to print them out or sent an attachement by email.