EUPillar SA P. v SAS A. - Comm. (réf.) Mons, 13 May 2011

Summary

The plaintiff, P., is a company specialized in insulation of tram rails. The defendant, A., is a company specialised in the development and supply of vibration-isolating systems. The plaintiff is the commercial representative of the defendant in Belgium. The plaintiff has sent still outstanding invoices to the defendant in the amount of 446,781 EUR. On 17 December 2010, A. brought an action against P. in termination of the exclusive distribution agreement between the parties before the Commercial Court of Paris. On 14 March 2011, P. initiated summary proceedings against A. before the president of the Commercial Court of Mons seeking payment of the invoices. Concerning the preliminary issue of jurisdiction, a distinction must be made between two types of invoices. The plaintiff, a Belgian company, has issued several invoices against the defendant. But the plaintiff also acquired invoices addressed to the defendant that were originally issued by a Moroccan company, for which it also demands payment. The invoices issued by the plaintiff, P. The plaintiff relies on a choice of court clause included in its general terms and conditions in favour of the courts of Mons. It is not contested that the parties have a long-standing commercial relationship, dating back to 2001 at least. This choice of court clause is valid if and when it accords with a form which the parties have established between themselves, within the meaning of Art. 23(1)(b) Brussels I Regulation. When a party to a contract regularly encounters the same general terms and conditions over a long period, the party can no longer maintain it had no knowledge of these general terms and conditions. Even if the party has not been specifically made aware of the choice of court clause, in the light of the duration of the relationship between the parties, he could not argue that it had no knowledge of the clause, except for wrongful negligence on its part. By failing to challenge this clause, or to invoke its own general terms and conditions which could cancel out the terms and conditions of the opposing party, the defendant is presumed to have tacitly accepted this clause. Therefore, the jurisdiction of the Belgian courts is established. The invoices issued by the Moroccan company T. The general terms and conditions of the plaintiff are not applicable to the invoices issued by T. However, the plaintiff relies on the close relatedness of both actions to justify the jurisdiction of the Belgian courts over all outstanding invoices in its possession. However, Arts. 27 and 28 Brussels I Regulation do not offer an independent ground of jurisdiction that would allow the plaintiff to join both actions in the same writ of summons. The Articles on related actions can only be used as a means of defence by the defendant. Therefore, the Belgian courts do not have jurisdiction over this part of the case. Relatedness to the Paris proceedings Moreover, the defendant argues that the present action is closely related to the termination of the exclusive distribution agreement, and therefore to the proceedings which are pending before the courts of Paris. However, the proceedings pending in Paris are proceedings as to the merits of the case, while before the Mons Commercial Court the proceedings are merely summary and would in any case be superseded by a later judgment on the merits. It is therefore not necessary to stay the proceedings, since the requirement of Art. 28 that there should be a risk of irreconcilable judgments resulting from separate proceedings is not fulfilled.