Tribunalul COVASNA; 2016-09-15; 781/15/09/2016
Decision by national courts in the field of European Union law — ECLI:RO:TBCVN:2016:001.000781
Date: 2016-09-15
Subject matter: Lugano Convention
Origin: Romania

82016RO0915(51)_ENG_SUMJURE
JURE summary
JURE summary
Decision no. 781/15.09.2016
Tribunalul COVASNA
ROMANIA
A Romanian legal entity domiciled in Romania (hereinafter ‘the plaintiff’) brought a lawsuit against an Italian legal entity domiciled in Italy (hereinafter ‘the defendant’) to replace textile lining and folding machines with new, unused ones, along with damages of EUR 172 284 for having delivered a used machine. The plaintiff sought a monthly fee of EUR 43 071 representing losses caused by its resulting inability to produce 22 335 duvet covers per day until a new machine is commissioned, plus court expenses.
The two parties had concluded a sales contract whereby the plaintiff purchased from the defendant’s company — a supplier — three machines that had to be delivered, mounted and put into operation at the plaintiff’s registered office. The plaintiff noticed that the installed machines showed visible signs of rust, various layers and colours of paint, as well as deformed parts, and thus concluded that the machines were not new, but used. Therefore, the plaintiff asked the seller to stop the installation and hire an authorised technical expert to perform an evaluation. The plaintiff also refused to pay the remaining EUR 26 500 of the contract until the defendant delivered and installed new machines at its registered office.
Citing Articles 19 and 21 of the sales contract, the defendant claimed that the contract should be interpreted in accordance with Swiss law and that the Swiss courts had jurisdiction. In its statement of defence, the defendant sought to have the plaintiff’s action denied, claiming the Romanian courts did not have jurisdiction, and demanded that the plaintiff pay court expenses to settle the dispute.
The defendant claimed that the dispute falls under the jurisdiction of Swiss courts according to Article 23 of the new Lugano Convention (1), that the plaintiff’s claims were unfounded, that the calculations attached to the request were unproven and that the plaintiff was at fault for not taking reasonable measures to limit its losses.
The Tribunalul Covasna (hereinafter ‘the Court of First Instance’) held that the plaintiff failed to prove the accuracy of the figures listed in a set of calculations provided with the request for summons. And yet the burden of proof lies with the plaintiff, who must prove, at least with invoices and market studies, the production costs, monthly sales and the market’s capacity to absorb the additional textiles generated by the commissioning of the machine. In the absence of such evidence, neither the defendant and nor the Court of First Instance can verify the plaintiff’s claims.
The defendant also submitted a warranty claim against the company that delivered the machines, requesting compensation for the sums to be returned to the plaintiff as well as reimbursement of court costs should the plaintiff prevail in the case.
On 7.4.2016, the Court of First Instance approved the request for a technical evaluation of the machines delivered to the plaintiff to verify any possible defects, but the evaluation was not finalised because, on 11.7.2016, the plaintiff submitted to the court an agreement between the parties. On 12.7.2016, the defendant waived the warranty claim request, as well as its request for the Court of First Instance to issue a ruling on the parties’ agreement.
The Court of First Instance held that the parties’ agreement did not violate any mandatory rules and upheld the amicable settlement of the dispute. Following Articles 438 and 439 of the Civil Procedure Code, the Court of First Instance upheld the document as agreed between the parties. With regard to the warranty claim, the Court of First Instance took note, under Article 406 of the Civil Procedure Code, of the defendant’s decision to waive it.
The agreement concluded between the parties provided that the defendant would continue to assemble and commission the machines and instruct the plaintiff’s personnel on their use; the defendant will deliver the new machines with a 30-day testing period after which the plaintiff will sign a protocol accepting the product if satisfied; the plaintiff undertakes to pay the defendant EUR 20 000, representing the price difference; the plaintiff waives unconditionally, definitively and irrevocably EUR 6 500 from the EUR 26 500 price difference owed to the defendant under the sales contract; both parties agreed that each one of them should bear its own legal fees. This agreement between the parties was subjected to and interpreted in accordance with Romanian law.
(1) Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.