EUPillar NV A. v. GmbH M.C - Kh. Hasselt, 13 June 2007

Summary

The claimants argues that it was the exclusive distributor of the defendant’s products on the Belgian and Luxembourg markets since 2000. The defendant then suddenly let the claimant know that it could no longer supply the claimant and that the claimant should find a different company in Belgium.There is no written distribution agreement. In the document instituting the proceedings, the claimant argues that all orders were placed with its letterhead which refers to its general terms and conditions, which were printed on the order forms. According to its general terms and conditions, the Belgian courts have jurisdiction. The defendant argues that there never was an exclusive distribution agreement between the parties. The defendant stresses that it appears before the Belgian court only to contest its jurisdiction. On the basis of its own general invoicing terms and conditions, the courts of Hamburg, Germany have jurisdiction. The defendant argues that the claimant never referred to its general terms and conditions in its order, but that its own general terms and conditions were referred to on every order confirmation since the beginning of their commercial relationship. The claimant also refers to the Belgian Act of 27 July 1971 on the unilateral termination of exclusive distribution agreements for an undetermined duration, which contains overriding mandatory provisions, but according to the defendant European law takes precedence over national rules so that Brussels I is applicable to this case. In the alternative, the claimant relies on Art. 5(1)(a) Brussels I. DECISION OF THE COURT The Court must examine its jurisdiction on the basis of the claim as described in the original writ of summons. The Court can examine its jurisdiction over the alleged exclusive distribution agreement as described by the claimant without having to determine whether there actually was such an agreement. The defendant is domiciled in Germany so that Brussels I is in effect applicable. Provisions of international law take precedence over national law. The parties invoke their general terms and conditions in vain. An exclusive distribution agreement is a framework agreement and differs from the actual sales to which it leads. The general terms and conditions on the invoices, order forms and order confirmations are therefore not applicable to the distribution agreement itself. This agreement was oral, and since the parties do not invoke that they had an oral choice of court agreement evidenced in writing, Art. 23 Brussels I does not apply. The claimant also invoked Art. 5(1)(a) Brussels I. However, the claimant does not describe the “obligation in question”. Moreover, the claimant failed to read Article 5(1) until the end. The Court decides that the concessionaire is a provider of services. Its obligations fall within the definition given by Arts. 50 and 51 TFEU. All claims relating to the exclusive distribution fall within the jurisdiction of the courts for the place where the services were provided – in this case, Belgium. The Belgian courts have jurisdiction.