Tribunalul PRAHOVA ; 2017-03-09; 415/09/03/2017
Decision by national courts in the field of European Union law — ECLI:RO:TBPHV:2017:013.000415
Date: 2017-03-09
Subject matter: Judicial cooperation in civil matters;Lugano Convention
Origin: Romania

82017RO0309(51)_ENG_SUMJURE
JURE summary
JURE summary
Civil decision no. 415/09.03.2017
Tribunalul PRAHOVA
ROMANIA
A provider of goods and services (hereinafter ‘the plaintiff’) filed a lawsuit against a buyer residing in Switzerland (hereinafter ‘the defendant’) seeking repayment for unpaid goods and services, with interest, provided by the plaintiff for which there were official, signed invoices.
In a statement of defence, the defendant claimed the Romanian courts did not have jurisdiction over the filing, because the parties’ trade was governed by Swiss law and any dispute arising between them would fall under the Swiss courts’ jurisdiction, according to a deliberate designation by the parties in the terms and conditions of their contract for goods and services. The plaintiff’s claims derive from orders made by the defendant based on this contract. The legal relations between the parties were governed by the Terms and Conditions accepted by the defendant, and, according to Article 21 of the Terms and Conditions, the law applicable to contracts between the plaintiff and defendant was Swiss law, and the Swiss courts should have the exclusive jurisdiction to settle any dispute arising from these relations.
The plaintiff claimed that in electronic correspondence with the defendant, an automatically generated message referred to the “terms and conditions" on another website of the defendant cannot be regarded as the choice of Swiss law. The plaintiff also invoked Article 4 of Rome I Regulation (1), according to which “a contract for the sale of goods shall be governed by the law of the country where the seller has his habitual residence.” Although Switzerland is a not a Member State of the European Union, it has adhered to the provisions of this regulation through agreements with the European Union in the fields of free movement of persons, air transport, land transport, technical barriers in the international trade etc.
The defendant noted that the terms and conditions only went into effect after the parties began collaborating. The parties did not establish — whether expressly or tacitly — which country has jurisdiction over their contract. In the absence of lex voluntaris, the legal presumption for the localization of the legal relationship is lex fori.
A main criterion to establish jurisdiction, as established by the Civil Code, is the state with whom the relationship at stake has the closest ties, here Romania. According to Article 2638(2) of the Civil Code, the relationship between the parties is governed the law of the country in which the debtor of the characteristic performance usually resided, registered trade or had a registered office when the contract was signed. Although the Civil Code does not define the notion of “characteristic performance,” it is defined as the seller’s obligation to hand over a sold good within the confines of buyer-seller agreement, according to doctrine and practice. Article 2639(2) of the Civil Code considers the contract valid if it fulfils the conditions provided by the law of the country where it was signed.
The defendant argued that the legal relationship also concerns trade obligations assumed by the parties on the basis of invoices issued under Romanian law, the plaintiff’s obligation to deliver goods and services and the defendant’s payment obligation were carried out on Romanian territory, governed by Romanian law. In procedural terms, Article 1073 of the Civil Procedure Code should be applicable.
In analysing the question of jurisdiction, the court found that it was necessary to distinguish between the court’s jurisdiction and the law applicable to the legal relationship arising from the contract. The court’s jurisdiction is determined depending on certain normative acts, while the law applicable to the contract is subsequently determined, by the competent court, on the basis of rules distinct from those acts governing the jurisdiction. The court rejected as inapplicable the provisions invoked by the defendant.
The court confirmed that the defendant has a registered office in Switzerland, which is not a Member State of the European Union. According to the new Lugano Convention (2), specifically its Article 2(1) and Articles 3 and 5, the plaintiff may choose as an alternative jurisdiction between courts of the country where the defendant has a registered office or, in contractual matters, courts where the contract was enacted. Based on the delivery notes, the court found that the plaintiff had delivered goods to Romania and Bulgaria. However, when there is a valid agreement conferring jurisdiction, this jurisdiction is exclusive, not alternative. In examining the electronic correspondence between the parties, the court found that the parties made a valid choice of jurisdiction — Switzerland. The Swiss courts thus have exclusive jurisdiction to settle any dispute arising from the parties' contract. Thus, Article 23 of the new Lugano Convention was held to be applicable.
The court upheld the jurisdiction clause as applicable, since it was communicated electronically in the orders formulated by the defendant and contained in the plaintiff’s filing. The plaintiff was aware, prior to carrying out every single order, about the content of that clause contained in Article 21 of the Terms and Conditions, which conferred Swiss jurisdiction under Swiss law for any dispute between the parties. The court also rejected the defendant’s claim that jurisdiction was government by terms of conditions of 2014 because the jurisdiction also existed in 2011, prior to the allegedly problematic orders at hand. Furthermore, the 2014 document was only an update of its predecessor, and the jurisdiction clause remained the same.
Given the express and unambiguous character of the jurisdiction clause contained in the orders, the court rejected as insufficient the plaintiff’s claims that the terms and conditions were missing from the orders. The plaintiff failed to prove that the terms and conditions had a different content at the relevant date or that they were not available on the indicated website. Also, by carrying out the orders, which contained this express content, the plaintiff consented to the specified jurisdiction. Furthermore, since the orders were carried out and transmitted electronically to the defendant, its contents cannot be segregated, and the entire order is governed by the contract.
The court ruled that the Romanian courts lacked jurisdiction and dismissed of the claim not falling under jurisdiction of the Romanian courts.
(1) Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations.
(2) Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.