EUPillar NV M. v. VOF K.M. and M.-D. - Kh. Brussel, 28 November 2005

Summary

The plaintiff claims 16,960.45 EUR in unpaid invoices plus interests. The defendant fails to enter an appearance. The plaintiff argues that the Belgian courts have jurisdiction on the basis of a choice of court clause in its general terms and conditions, which are printed on the back of its invoices. This clause is valid only in the following circumstances (cf. Art. 23(1)(b)) - The parties have a sufficiently longstanding trade relationship that allowed the parties to “establish a practice between themselves”; - This trade relationship existed prior to the transactions underlying the current dispute; - The party who relies on them consistently used the same general terms and conditions in its relationship with the opposing party; - The opposing party effectively and regularly encountered those general terms and conditions. This does not mean merely that the opposing party received the general terms and conditions, e.g. printed on an order confirmation or invoice, but that the party who relies on them specifically referred to its general terms and conditions, e.g. in a letter accompanying its invoices, on its order confirmations, in a reminder, or during a previous dispute between the parties. In the case at hand, the plaintiff fails to show that this last condition is fulfilled. 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. Under Belgian law, the tacit acceptance of an invoice by a trader extends to all provisions on that invoice. The plaintiff’s invoices provide that all invoices are payable in cash at the plaintiff’s seat in Belgium. Therefore, the Belgian courts have jurisdiction. SHORT CRITIQUE The Court applies art. 23(1)(b) strictly, by requiring that the party who relies on a choice of court clause in its general terms and conditions not only makes sure that the opposing party receives these general terms and conditions beforehand, but also draws the opposing party’s attention to the existence of those general terms and conditions, for example in an accompanying letter. Later, the Court considers the validity and enforceability of the general terms and conditions under Belgian law, which is much more supple: a tacit acceptance of the invoices, with the general terms and conditions printed on the back, suffices. Then, the Court examines its jurisdiction on the basis of Art. 5(1)(a). We are not entirely sure of the type of contract in question here, since we do not dispose of the full text of the judgment, but several terms used in the judgment (such as “delivery” and “general terms of sale”) give us reason to believe it was a sales contract. If that is the case, the court should have applied Art. 5(1)(b), first indent, and the courts of The Netherlands (place of delivery) would have been competent to hear the case. See also case 2005-08-16, a case judged by the same court with the same president, where the court applies Art. 5(1) wrongly.