EUPillar L.E. NV v E.T.F. S.L. - 2011/AR/1312

Summary

Appellant and defendant are parties to a sales contract. The appellant had initiated the proceedings in first instance by summons of 2 July 2010. The seller (appellant) claims payment of the price of the goods delivered to the buyer (defendant), as well as transportation costs and interests. On the back of the invoices sent by the seller to the buyer, there was a choice of forum clause (in Dutch, English and French) – among other general conditions – granting jurisdiction to the courts of the Belgian city of Courtrai. On the front of the invoices there was a reference, in English, to the general conditions to be found on the back of the paper. Originally the appellant brought his claim before the Commercial Court in Courtrai, even though the defendant is domiciled in Spain. The Court, however, declined its jurisdiction considering the appellant did not, in its opinion, sufficiently prove the existence of a long-term trade relationship between itself and the defendant. Only one invoice was submitted to the Court. With reference to Art. 23(1)(b) of Regulation 44/2001 the Court rules that consent can be derived neither from the absence of any challenge to the invoice or the general conditions containing the jurisdiction clause, nor from the performance of the contract or the acknowledgment by the buyer that he actually does owe the amount on the invoice. The appellant lodged an appeal against this decision. On appeal, the appellant submitted seven invoices to the Court, dated between March and August 2009. The Court therefore accepts the validity of the jurisdiction clause, based on the existence of practices which the parties have established between themselves. The Court adds that not once the defendant had challenged the choice of forum clause or any other of the general condition – not even when the seller relied on its general conditions to send formal notice of default to the defendant. The defendant had also acknowledged a debt flowing from one of the invoices. This case is a good example of how the Belgian courts apply art. 23(1)(b) and on what basis they determine whether the parties have a long-term trade relationship so as to establish a practice between themselves: one invoice does not suffice, seven invoices do.