EUPillar Kanters BV v Elektro Mahieu BVBA - C.07.0175.N

Summary

The sales contract between a seller resident in Belgium and a buyer resident in the Netherlands does not specify the place of delivery of the goods. The Ghent Court of Appeal ruled that the CISG was applicable to this international sales agreement, and that pursuant to Art. 31 CISG the place of delivery is in Belgium. To promote uniformity and predictability of international jurisdiction, the Brussels I Regulation contains an autonomous definition of the place of delivery for sales contracts. Despite the fact that the goods were in fact delivered in the Netherlands, the Court of Appeal attempted to determine the place of delivery with reference to the Vienna Sales Convention. The Court of Cassation rules that the Court of Appeal’s reasoning is wrong and hereby relies on the Color Drack decision of the European Court of Justice (C-386/05). The place of delivery for the purpose of Art. 5(1)(b) of the Brussels I Regulation is in the Netherlands. The Court of Cassation rescinds the decision of the Court of Appeal. SHORT CRITIQUE The determination of the place of delivery within the meaning of Art. 5(1)(b), first indent, Brussels I has long been a point of discussion, to which the ECJ put an end, as we know, in the Car Trim case on 25 February 2010 (C-381/08). At the time of the present decision of the Belgian Court of Cassation, this decision was not yet handed down. The interpretation of the Court is not in line with the proper construction that would later be given by the ECJ. In the case at hand, the parties had not provided a place of delivery in the contract, so the Court of Cassation looks at the factual place of delivery so that it does not have to apply the conflicts of law method. That is correct, however, the Court of Cassation also states that the place of delivery is "not dependent on an agreement between the parties". That is contrary to the wording of Art. 5(1)(b), first indent. If the parties have entered into an agreement on the place of delivery, that agreement takes precedence over the factual place of delivery. The Court of Cassation relied on an erroneous interpretation of the Color Drack decision, in particular considerations 19, 24 and 25, which it gave a wider scope.