PIL instrument(s)

Case number and/or case name

P.S.F.A.V.I. Ltd. v Mr. J. Meerts - Antwerpen, 12 September 2011

Details of the court

Belgium, Second Instance

Articles referred to by the court

Date of the judgement

11 September 2011

Appeal history

CJEU's case law cited by the court

Summary

The appellant contests the jurisdiction of the Belgian courts to take cognisance of the case at hand, and requests to refer the case to the commercial division at the Royal Court of Justice, Strand, London WC2 A2LL. The defendant refers to the choice of court clause included in the general terms and conditions of the BVBA H. conferring jurisdiction on the courts of Antwerp, Belgium. The defendant submits several versions of the same invoices (for the same amounts) to the court, some with and some without general terms and conditions. It is uncertain which versions were actually received by the appellant. It is therefore not established that the parties concluded a choice of court clause in writing, nor orally and evidenced in writing, nor in a form which accords with a practice which the parties have established between themselves. No previous relationship between the parties has been demonstrated. The Council regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings is not applicable to the case at hand. The bankruptcy of the defendant does not influence the claim except for that the bankruptcy administrator represents the debtor. The jurisdiction of the court must be determined in accordance with Art. 5(1)(b). There is no contract between the parties which determines where the goods should have been delivered. In Car Trim (C-381/08), the ECJ decided that where it is impossible to determine the place of delivery on the basis of the provisions of the contract, 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. In the present case, that place of delivery is at the seat of the appellant, in the United Kingdom. Therefore, the Belgian courts do not have jurisdiction. Short critique This case is in line with the majority of the case law on Art. 23 and Art. 5(1)(b). The Court examines the evolution of the case law on that last article in detail, citing the Color Drack judgment of the ECJ, the Belgian Court of Cassation case of 5 December 2008 and finally the decision in Car Trim.