EUPillar HCM Technisch Consult en Metaalwerken BVBA v. GmbH Thyssen Krupp Drauz Nothelfer - A/06/2289

Summary

The Court considers that, since the defendant is seated in Germany, it should determine its jurisdiction under the provisions of the Brussels I Regulation. Especially important in this case is Art. 23(2)(b) (NOTE: the Court means Art. 23(1)(b)). Both claimant and defendant invoke Art. 23(1)(b) to establish that the forum selection clause in their general terms and conditions validly confers jurisdiction on the court of their choice (i.e. respectively the courts of Tongeren, Belgium and the courts for the place of the defendant’s seat in Germany). The application of Art. 23(1)(b) requires that the opposing party was notified of the general terms and conditions and accepted them. The defendant alleges that it informed the claimant of its general terms and conditions, but submits no proof so that its choice of court clause cannot be applied. It is insufficient in this regard that its order forms mention that its general terms and conditions can be consulted on its website and are available on request. On the other hand, the defendant did receive the general terms and conditions of the claimant. These general terms and conditions are printed at the bottom on the front of the invoices issued by the claimant. The defendant paid two of those invoices without any reservation. Therefore, the parties had a regular trade relationship. The defendant does not contest that this relationship may not have existed prior to the transaction underlying the present dispute, since he himself tried to rely on its own general terms and conditions, also on the basis of Art. 23(1)(b). However, the general terms and conditions were drawn up in Dutch, a language that the defendant allegedly does not understand. The Court considers that the fact that the general terms and conditions are in a different language than the language of the recipient is not sufficient, in itself, to exclude the validity of the choice of court clause. The Court must take into account all circumstances of the case: - The defendant is a German multinational which oversees the progress of a building project in Vilvoorde, Belgium. - The defendant replaced the previously appointed Flemish head contractor. - The defendant does not contest that the parties entered into a contract on the basis of the order placed in Dutch by the previous head contractor. The Court decides that, as a large multinational company which acquired a contract in Belgium which it knew would be executed by Flemish subcontractors, it is the defendant who must bear the “language risk” associated with cross-border assignments of this size. If the defendant does not understand the choice of court clause in Dutch, it must bear the consequences of its own incompetence. Moreover, it is not unusual for contractors to include a choice of court clause in favour of their own local courts, so that the defendant cannot argue it was surprised by an unfamiliar clause. The Belgian courts designated by the choice of court clause have jurisdiction.