EUPillar T. BV v. J. NV - Antwerpen, 28 April 2010

Summary

Before the first judge, the respondent (claimant in first instance) had sued the appellant (defendant in first instance) in payment of outstanding invoices for the delivery of wheat and barley in the amount of 16,882.46 EUR (including fixed damages) plus contractual late-payment interests. The respondent had issued two invoices which were uncontested by the appellant but only partially paid. The appellant contests the jurisdiction of the Belgian courts and also enters a counterclaim. The appellant claims damages because it had to find a third provider of grains and paid a higher price, when the respondent unexpectedly halted the deliveries of wheat and barley. The first judge accepted its international jurisdiction and awards damages to the defendant in the amount of 33,536.65 EUR plus interests. On appeal, the Court of Appeal also examines its jurisdiction. Art. 23(1) Brussels I offers parties the possibility to confer jurisdiction to a court to settle their disputes. One of the parties must be domiciled in a Member State, the case must have a foreign element and the choice of court agreement must designate the courts of a Member State. In the case at hand, these requirements are fulfilled. A valid choice of court clause confers exclusive jurisdiction to these courts. Art. 23(1) also sets some formal requirements. The defendant refers to its general terms and conditions which include a forum selection clause in favour of the Belgian courts. It is not necessary that the appellant expressly agreed to these general terms and conditions. In light of Art. 23(1)(b), it suffices that the parties have a recurrent commercial relationship which was governed by the same general terms and conditions, and that the recipient never contested those terms and conditions. The defendant had made regular deliveries to the appellant since 1995, and always made use of the same general terms and conditions. The choice of court clause is valid. The Belgian courts have jurisdiction. Where the applicable law is concerned, the parties agreed at the hearing that Belgian law is applicable. The court accepts the choice of law made during the proceedings. SHORT CRITIQUE This decision is in line with other Belgian case law. If the parties use the same general terms and conditions over a long period of time, the Belgian courts will presume that the recipient accepted the general terms and conditions of its adversary if he never challenged them. The parties had a 9-year long commercial relationship in the case at hand. See national report for more information.