EUPillar W. NV v L.C. BV - Kh. Kortrijk, 10 July 2013

Summary

The defendant, who is domiciled in the EU, failed to enter an appearance. On the basis of Art. 26(1) Brussels I Regulation, the court examines its jurisdiction of its own motion. In the writ of summons, the claimant argues that the courts of Kortrijk, Belgium have jurisdiction on the basis of the choice of court clause in its general conditions of sale. Pursuant to Art. 23(1) of the Brussels I Regulation, a choice of court clause which is not in writing or evidenced in writing, but which is included in the general terms and conditions of the claimant, can be accepted by the court when the parties regularly encountered the same general terms and conditions during previous transactions between them. Except in the case of wrongful negligence, the parties are deemed to have been aware of the choice of court clause included in those general terms and conditions. If they never contested the general terms and conditions, they are deemed to have agreed to them. The Court sets two criteria: a) there must be a sufficiently long trade relationship between the parties so that it can be said that they established a "practice" between themselves; b) this relationship must have existed prior to the transaction underlying the dispute. The claimant fails to submit other paid invoices dated prior to the invoices for which payment is sought in the present case. On the other hand, the evidence shows that the goods were delivered in Everberg, Belgium. In its judgment of 5 December 2008, the Belgian Court of Cassation ruled that the place of delivery of the goods within the meaning of Art. 5(1)(b) of the Brussels I Regulation should be determined on a factual basis. Everberg is situated in the district of Leuven and not in the district of Kortrijk. Art. 5(1)(b) designates the local courts directly. This Article governs both the international jurisdiction and the territorial jurisdiction of the domestic courts. The courts of Leuven, Belgium have jurisdiction. Short critique The Commercial Court refers to a decision of the Belgian Supreme Court of 5 December 2008, which is no longer relevant. This Supreme Court decision was partially contradicted by the ECJ in its Car Trim judgment (the Supreme Court had decided that even if the parties contractually agreed on a place of delivery, only the factual place of delivery counts). The Commercial Court should therefore have referred to the Car Trim judgment. However, since the parties did not agree on a place of delivery in this particular case, the outcome of the case would not have changed.