EUPillar NV P. v. GmbH A. - Kh. Hasselt, 8 May 2007

Summary

The plaintiff sued the defendant in payment of several invoices issued between 3 October 2005 and 23 January 2006 for a total amount of 113,589 EUR. The defendant contests the international jurisdiction of the Belgian courts. The plaintiff refers to a choice of court clause in its general terms and conditions in favour of the courts of Hasselt, Belgium. The defendant argues (i) that it was never notified of the plaintiff’s general terms and conditions, (ii) that the general terms and conditions do not satisfy the requirements of Art. 23 Brussels I, (iii) that the general terms and conditions were drawn up in Dutch and French, a language which it doesn’t understand. (i) The plaintiff submits a copy of the invoices to the court. The general terms and conditions are printed on the back of those invoices, so that the court must conclude that it did receive the invoices. (ii) A choice of court agreement can be agreed upon in a form which accords with practices which the parties have established between themselves. This means that the parties are subject to the general terms and conditions if their previous transactions were governed by the same general terms and conditions. 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. The plaintiff shows that it had sent other invoices, relating to previous transactions, to the defendant. (iii) The conditions of Art. 23 Brussels I are fulfilled. Nevertheless, the Court notes that the general terms and conditions were drawn up in Dutch and French, whereas the correspondence between the parties is in German and English. The plaintiff argues in vain that French is a well-known language of international commerce. The court doubts that this is the case – English would be a more likely choice – and also notes that this does not show that the defendant actually knew French. Another argument of the plaintiff, that the defendant “even knows Czech” is completely irrelevant to its knowledge of French. The plaintiff notes that some Dutch invoices were paid by the defendant. The court considers that the object of the invoices was described in German and that it does not take a profound knowledge of the language to understand that the document is a payable invoice. It takes a lot more to understand the general terms and conditions. A choice of court clause which is written in a language not known to the recipient, does not satisfy the requirements of Art. 23. (iv) The plaintiff then falls back on Art. 5(1) Brussels I. The parties did not agree on a place of delivery in the contract. The meaning of the notion of “place of delivery” is controversial. Certain legal authors believe that the “place of delivery” should be determined on the basis of Art. 31 CISG. Others believe that the notion should receive an autonomous interpretation. The delivery then is a purely factual notion, independent from the notion of delivery under the law of obligations and the transfer of risk associated with the delivery. The Court agrees with the second meaning. Jurisdiction lies with the court of the place where the goods were delivered (usually the place where the buyer is established), since that court has the closest link with disputes over the payment of the purchase price. It appears from the transport documents that the place of destination of the goods was situated at the corporate seat of the defendant. From the elements submitted to it, the Court must conclude that the parties implicitly agreed to deliver the goods at the buyer’s place of business. This entails that the courts of Germany have jurisdiction.