EUPillar NV M. v. GmbH B. - Kh. Hasselt, 25 April 2007

Summary

The claim relates to unpaid invoices for the delivery of goods. The general terms and conditions confer jurisdiction to the courts of Hasselt, Belgium and provide that the place of delivery and payment is in Houthalen, Belgium. The claimant argues that the Belgian courts have jurisdiction pursuant to both Art. 23 and Art. 5(1)(b) Brussels I Regulation. Art. 12 of the Belgian Code on Private International Law provides that the court must examine its jurisdiction of its own motion. The issue must be determined pursuant to the Brussels I Regulation, since the defendant is domiciled in Germany. Pursuant to Art. 26(1) Brussels I Regulation, where a defendant domiciled in one Member State is sued in a court of another Member State and does not enter an appearance, the court shall declare of its own motion that it has no jurisdiction unless its jurisdiction is derived from the provisions of this Regulation. When the parties agreed on a choice of court agreement which satisfies the requirements of Art. 23 Brussels I Regulation, that court has jurisdiction. In the case at hand it is important that this choice of court agreement may be in a form which accords with practices which the parties have established between themselves. If the parties regularly encountered the same general terms and conditions during previous dealings, they presumably – if they aren’t wrongfully negligent – have knowledge of the choice of court clause included therein. If they never contested the general terms and conditions of the other party, they are assumed to have agree to them. Those dealings must be prior to the transactions underlying the dispute at hand. In this case, the claimant does not show that the parties had prior dealings. However, since the claimant does establish that goods had to delivered in Belgium, the Belgian courts have jurisdiction pursuant to Art. 5(1)(b) Brussels I Regulation. SHORT CRITIQUE This is a correct application of the Brussels I Regulation.