EUPillar NV P. v. NV C. and S.A. C.F. - Kh. Brussel, 16 August 2005

Summary

The plaintiff is specialised in executing national and international mailings. On 3 April 2002, the first defendant placed an order with the plaintiff for a mailing to be sent to addresses in France, The Netherlands, the Grand Duchy of Luxembourg and Belgium. The plaintiff confirmed the order on 4 April 2002 and then executed it. The plaintiff now sues the defendants in payment of 1,783.97 EUR in outstanding invoices, plus legal and contractual interests. The second defendant, a company seated in France, contests the jurisdiction of the Belgian courts. The plaintiff refers to a choice of court clause in its general terms and conditions of sale printed on the disputed invoice. The defendant never objected to these general terms and conditions. However, the Court notes that the absence of a response to a choice of court clause on an invoice is not equal to an agreement that is written nor evidenced in writing. The plaintiff does not argue that the choice of court clause is in a form which accords with practices which the parties have established between themselves; nor that it is in a form which accords with a usage of international trade. Pursuant to Art. 5(1)(a) Brussels I, in matters relating to a contract, the courts for the place of performance of the obligation in question also have jurisdiction. The “obligation in question” is the contractual obligation forming the basis of the legal proceedings, in this case the obligation to pay outstanding invoices. If the parties agreed on a place of performance of the obligation in question, this agreement has the effect of conferring jurisdiction. Such a clause does not have to meet the requirements of Art. 23. The law applicable to the contract must be determined pursuant to the 1980 Rome Convention,(Art. 4(1) and (2). The characteristic performance is the plaintiff’s obligation under the contract. It appears from the documents submitted to the court (invoices, correspondence, emails, …) that the plaintiff acted from its Belgian offices. Clearly, Belgian law is applicable to the contract. The general terms and conditions of the plaintiff, which are printed on the invoice and debit note, provide that all debts are payable at the seller’s place of business. Under Belgian law, the tacit acceptance of an invoice by a trader extends to all provisions on that invoice. However, this basic principle when the recipient shows that the uncontested invoice is different from the agreement which preceded it. If that is the case, a tacit acceptance is no longer sufficient but the plaintiff will have to show that because of the circumstances the recipient did agree with those new, differing terms and conditions. In the case at hand, the order and the order confirmation of 3 and 4 April 2002 do not mention any general terms and conditions. These appear only on the invoice and debit note, while the plaintiff did not draw the defendant’s attention to the fact that it wanted to make this kind of changes to the initial agreement. Nor does the plaintiff show that the parties had a longstanding commercial relationship. Since it has not been proven that the defendant accepted the general terms and conditions, the parties did not validly agree on a place of performance of the obligation in question within the meaning of Art. 5(1)(a). It follows that, pursuant to Art. 5(1)(b), second indent, the place of performance must be considered to be the place where the services were provided – i.e. in Belgium. SHORT CRITIQUE The Court applies Art. 5(1)(a) and (b) incorrectly. It should have identified the contract as a contract for provision of services and applied Art. 5(1)(b), second indent, from the outset, instead of doing so only after a long reasoning. See also case of 28 November 2005 for a decision by the same court (with the same president) where we also have our doubts as to whether the Court correctly applied Art. 5(1).