Voorzieningsrechter van de rechtbank Maastricht, vonnis van 04/12/2007 Professional Display Systems BV / Barco NV
Decision by national courts in the field of European Union law — ECLI:NL:RBMAA:2007:BB9577
Date: 2007-12-04
Subject matter: Judicial cooperation in civil matters
Origin: Netherlands

82007NL1204(02)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The defendant, seated in Belgium, ordered television picture tubes from the plaintiff, seated in the Netherlands. On its orders, the defendant referred to its general terms of purchase, which contained a jurisdiction clause in favour of the Belgian courts. Later, the defendant asked what it would cost to cancel all orders. The plaintiff demanded €57_000.00. The plaintiff instituted interim proceedings before the Rechtbank of Maastricht (NL), seeking payment of €57_000.00 based on an indemnity agreement between the parties. The defendant disputed jurisdiction. The defendant argued that no indemnity agreement had been created between the parties, but only the sales contracts, and that its general terms of purchase with the jurisdiction clause govern these sales contracts. Moreover, the place of delivery was in Belgium.
The Rechtbank of Maastricht finds that the defendant has not proven the agreement between the parties required under Article 23 Brussels I Regulation. The claim of the action was not based on the sales contracts, but on an indemnity agreement. Whether that agreement was actually created is not contestable during jurisdictional review. Article 5(1)(a) Brussels I Regulation applies to the indemnity agreement, and not Article 5(1)(b) Brussels I Regulation. The place of performance is determined by the contractual agreement. The payment obligation is the characteristic contractual obligation to be performed by the defendant. As the defendant has its seat in Belgium, the court in Belgium has jurisdiction. Nor does jurisdiction arise under Article 31 Brussels I Regulation. As the plaintiff has posted no security, and no assets of the defendant are located within the territorial jurisdiction of the Rechtbank, and according to ECJ jurisprudence (17.11.1998, C-391/95, Van Uden/Decoline), the action is not directed at provisional measures within the meaning of Article 31 Brussels I Regulation. The Rechtbank declares itself lacking in jurisdiction.