EUPillar NV A. v. S - Ghent, 8 October 2008

Summary

The appellant, A., is a Belgian company which seeks several heads of compensation for the unilateral termination of the exclusive distribution agreement by the respondent, S., a company governed by the laws of England and Wales. S. contests the jurisdiction of the Belgian courts (i.e., in first instance the Commercial Court of Dendermonde and now the jurisdiction of the Court of Appeal of Ghent). In order to examine its jurisdiction, the court must have regard only to the claim as described by the plaintiff in the original writ of summons. The appellant argues that the Belgian courts have jurisdiction on the basis of Art. 4 of the Belgian Act of 27 July 1961 on the unilateral termination of exclusive distribution agreements of undetermined duration, which stipulates that “The distributor may, upon termination of a distribution agreement effective within the entire Belgian territory or a part thereof, in any event summon the supplier, either before the court of his own domicile, or before the court of the domicile or registered office of the supplier.” The Court must determine its jurisdiction pursuant to Regulation 44/2001, which entered into force on 1 March 2002 (cf. Art. 76). The defendant contests the jurisdiction of the courts on the basis of Art. 23 Brussels I. On 19 May 1982, the parties signed a “Manufacturers representative agreement”, stipulating in its Article 10 that “This agreement is governed by and shall be interpreted under the laws of England. Any dispute in connection with its interpretation or implementation shall be of the sole jurisdiction of the Courts of London.” This choice of court clause satisfies the requirements of Art. 23 Brussels I. Since European law takes precedence over Belgian law, that choice of court clause is enough to put aside Art. 4 of the Belgian Act of 27 July 1961. Contrary to the allegations of the appellant, the choice of court clause is not null and void, merely because the supranational rules which take precedence over the Belgian Act of 27 July 1961 were not yet in force when the agreement was signed in 1982. The proceedings were instituted after 1 March 2002 so that they are governed by the Regulation (cf. Art. 66). The jurisdiction of the courts of London is exclusive. The Belgian courts lack jurisdiction. SHORT CRITIQUE The court correctly applies Art. 23(1)(a) Brussels I. (The court itself does not refer to the subparagraph it applies). A choice of court clause in a written agreement signed by both parties is valid. The court also sets aside Belgian law in favour of the EU PIL rules.