EUPillar BVBA M.B.-B. in liquidation v. SARL M.C.

Summary

The claim relates to payment of uncontested invoices issued by a Belgian seller to a Luxembourg buyer. The general invoicing terms and conditions provide that the courts of the corporate seat of the Belgian buyer have jurisdiction. The defendant relies on Art. 23(1)(b) Brussels I. The parties had a continuous commercial relationship governed by the general terms and conditions of the seller from 22 December 2000 until 31 December 2003, as shown by the ten invoices sent to the defendant, but also by three payments made by the defendant on 30 September 2002. In the alternative, the claimant argues that the choice of court clause in its general terms and conditions should be withheld on the basis of art. 23(1)(c) Brussels I. To this end, the claimant wrote to six international distributors of doors and windows, four in Belgium and two in The Netherlands, with the request to send a copy of the general terms and conditions they use in their relationship with clients. All of those general terms and conditions included a choice of court clause. DECISION OF THE COURT Pursuant to Art. 26(1) Brussels I, 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. The defendant can be sued before the courts of his domicile (art. 2). The defendant may be sued before a different court exclusively on the jurisdictional bases of Art. 5-24 Brussels I. Thus, when the parties have agreed on a choice of court clause which satisfies the requirements of Art. 23, the court designated by that clause has jurisdiction. The parties are bound by choice of court clauses included in their general terms and conditions, if previous transactions were also subject to those general terms and conditions. If the parties regularly encounter the same general terms and conditions, it is assumed – except for wrongful negligence – that they were notified of those general terms and conditions. If, moreover, they never contested the general terms and conditions, it is presumed that they in fact accepted the choice of court clause included therein. In the case at hand, only one previous transaction, other than the one which underlies the present dispute, between the parties has been established. Therefore, the requirements of art. 23(1)(b) are not satisfied. However, the Court decides that the claimant has shown that the choice of court clause is in a form which accords with a usage in international trade within the meaning of Art. 23(1)(c) Brussels I. SHORT CRITIQUE This is one of the rare instances where a Belgian court accepted the validity of a choice of court clause on the basis of Art. 23(1)(c).