EUPillar SPRL Distribution Mit Logistique Liège (“DMLL”) v. SA TPH LUX - 2012/RG/483

Summary

In first instance, the appellant sued the respondent in reimbursement of the sum of 9,979 EUR which it allegedly overpaid. The first judge declined jurisdiction. The respondent transported goods for the appellant in Belgium. The respondent's general terms and conditions do not contain a choice of court clause. The appellant made two payments of 5,000 EUR each. According to the appellant, these payments were advance payments for the invoices issued by the respondent, whereas the respondent argues these were payments for future transport operations. The appellant believes it overpaid almost 10,000 EUR and argues that “while this sum results from the contractual relationship between the parties, it was not paid in performance of this contract”, that the payment is a simple legal fact and the obligation to reimburse is therefore non contractual. As such, the Belgian courts have jurisdiction on the basis of Art. 5(3) Brussels I Regulation which is concerned with matters relating to tort. However, Belgian legal doctrine confirms that the obligation to restore an undue payment is neither a matter relating to a contract nor a matter relating to tort. Neither Art. 5(1) nor Art. 5(3) Brussels I Regulation can be relied on in this case. The courts of Luxembourg have jurisdiction pursuant to Art. 2 Brussels I. The defendant is domiciled in the Grand Duchy of Luxembourg. This solution would be the same if the action of the appellant were based on the contractual relationship between the parties. Art. 5(1)(a) Brussels I stipulates that a person domiciled in a Member State may be sued in another Member State in matters relating to a contract, in the courts for the place of performance of the obligation in question. The obligation in question is the (re)payment by the respondent. Under Belgian law, debts are payable at the debtor’s residence – so again, in Luxembourg. SHORT CRITIQUE The Court examines the nature of the claim, which is based on unjust enrichment, under Belgian law and decides that the claim arose neither out of a contract nor out of tort or delict, so that Arts. 5(1) and (3) Brussels I are not applicable. However, the terms contractual and "extra-contractual" obligation have an autonomous meaning within European law. The Court should have interpreted those terms without referring to Belgian law. The ECJ has not yet handed down a decision on the autonomous qualification of unjust enrichment. The ECJ has defined the concept "matters relating to contract" in Handte (C-26/91) and Engler (C-27/02). The application of the rule of special jurisdiction provided for matters relating to a contract in Art. 5(1) presupposes the establishment of a legal obligation freely consented to by one person towards another and on which the claimant’s action is based. The recovery of an undue payment does not seem to fit within this definition. In Kalfelis (189/87), the ECJ clarified that the term "matters relating to tort" used in Art. 5(3) must be regarded as an independent concept covering all actions which seek to establish the liability of a defendant and which are not related to a 'contract' within the meaning of Art. 5(1). The second condition is fulfilled, but the question remains whether an action for the restitution of an undue payment seeks to establish the "liability" of the defendant. It must be noted that in the Rome II Regulation, Recital 29 states that in the case of unjust enrichment, damage is caused by an act "other than a tort/delict". In his note published under this judgment in RDC/TBH 2014 (1) 92, A. Hansebout therefore agrees with the end result reached by the appeal court (if not with its method): Both arts. 5(1) and 5(3) are inapplicable and one must fall back on art. 2. Finally, the Court of Appeal considers, for the sake of completeness, that the outcome would be the same if one were to apply Art. 5(1)(a). However, it does not apply the Tessili method, and simply bases its conclusion on Belgian law.