EUPillar BVBA D. v. GmbH M. - Gent, 30 June 2010

Summary

The parties made several agreements in the spring of 2008 in view of the modernisation and automation by the appellant of the defendant’s factory in Germany. The appellant states that the parties entered into two contracts, the first on 22/01/2008 and the second on 20/04/2008. The defendant argues that it entered into only one contract, by an acceptance letter of 19/02/2008 in response to an offer made by the appellant that same day. The offer and/or agreement of 22/01/2008 and 19/02/2008 are near identical. Initially the parties cooperated well, but at a certain point the defendant found there were problems with the automation system. The official certification body TÜV also found some issues. The defendant deferred its payments. On 13 February 2009, the appellant sued the defendant before the Commercial Court of Dendermonde in Belgium in payment of outstanding invoices in the amount of 548,286 EUR plus interest and a contractual cost compensation. The defendant contested the jurisdiction of the Belgian courts. The main point of discussion between the parties is the validity of the general terms and conditions of the appellant and their acceptance by the defendant. These general terms and conditions include a jurisdiction clause in favour of the Belgian courts of Aalst. The defendant even contests the validity of the signatures of its representatives on the disputed contracts of 22/01/2008 and 20/04/2008. The first judge refused to order a handwriting analysis, arguing that such an analysis of the validity of the agreements between the parties would run ahead of the substantive resolution of the case, while the defendant’s objection as to jurisdiction precedes any other objection, including those relating to the substance of the case. The first judge declined its jurisdiction, considering that because of the above, he could not apply Art. 23 Brussels I, and that on the basis of Art. 5(1)(a) Brussels I in conjunction with Art. 4(2) of the European Contracts Convention it must be concluded that the place of the “obligation in question”, i.e. the defendant’s obligation to pay, under Belgian law is at the debtor’s place of business, in Germany. COURT DECISION The general terms and conditions of the appellant are printed on the back of each page of the two contracts of 22/01/2008 and 20/04/2008 in four different languages (French, Dutch, English and German). The defendant argues that only the agreement of 19/02/2008 is valid, which was concluded by e-mail and does not contain those general terms and conditions. The Court of Appeal decides that if the validity and authenticity of the signatures of the representatives of the defendant, Mr. A. and Mr. G., are confirmed, the jurisdiction clause on the back of the agreement is valid as well. Therefore, it is useful to order a handwriting analysis to resolve the jurisdiction conflict. The handwriting analysis is order on the basis of Art. 19 §2 Belgian Judicial Code. The measure is in conformity with Art. 31 Brussels I, which allows the courts of a Member State to take provisional measures even if, under the Regulation, the courts of another Member State have jurisdiction as to the substance of the matter. SHORT CRITIQUE The expression “provisional, including protective, measures” within the meaning of Article 31 of the Brussels I Regulation is to be understood as referring to measures which, in matters within the scope of the Regulation, are intended to preserve a factual or legal situation so as to safeguard rights the recognition of which is otherwise sought from the court having jurisdiction as to the substance of the case (see C-261/90 Reichert and Kockler, para. 34). The handwriting analysis ordered by the Ghent Court of Appeal is such a measure. It is remarkable that the Court uses its jurisdiction on the basis of Art. 31 Brussels I so that it could later establish its jurisdiction over the substance of the case on the basis of a choice of court clause.