CELEX: C1997/212/17
Language: en
Date: 1997-07-12 00:00:00
Title: Action brought on 23 April 1997 by the Commission of the European Communities against Van Balkom Non-Ferro Scheiding BV (Case C-156/97)

12 . 7 . 97             EN                       Official Journal of the European Communities                                    No C 212/9
Action brought on 23 April 1997 by the Commission                                  the jurisdiction clause by means of the requirements
of the European Communities against Van Balkom                                     laid down by that provision in respect of the validity
                     Non-Ferro Scheiding BV                                        of such clauses; that is also the case where the clause
                          ( Case C-156/97)                                         is adjudged valid, when the bill of lading containing
                                                                                   the    clause   comes  within    the   framework      of  a
                              ( 97/C 212/17)                                       continuing business relationship between the parties,
                                                                                   and it is thereby established that the relationship is
An action against Van Balkom Non-Ferro Scheiding BV                                governed by the general terms and conditions ( drawn
was brought before the Court of Justice of the European                            up by one of the parties, namely the carrier )
Communities on 23 April 1997 by the Commission of the                              containing that clause ( see the judgment in Case 71 /
European Communities, represented by H. Van Lier and                               83 (2 ) which cites earlier judgments underscoring the
G. zur Hausen, acting as Agents, with an address for                               need for the consent of the parties to be clearly and
service in Luxembourg at the office of C. Gomez de la                              precisely demonstrated ).
Cruz, of the Commission's Legal Service, Wagner Centre,
Kirchberg.                                                                         However, in the light of the insertion into the new
                                                                                   wording of the provision of the reference to usage,
The applicant claims that the Court should :                                       which is prescriptive ( and thus unconnected to the
                                                                                   will of the parties, at least so far as specifically
1 . order the defendant to pay to the Commission of the                            concerns a particular contract), the question arises
       European Communities the amount of ECU 251 649 ,                            whether the requirement of ( actual ) knowledge, or of
       plus interest due from 1 July 1991 at the percentage                        lack of awareness arising out of negligent and
       rates, published on the first working day of each                           inexcusable ignorance, is sufficient in view of the
       month, which the European Monetary Cooperation                              consistent incorporation ( in all agreements similar to
       Fund charges in respect of its ecu transactions, along                      that in issue ) of the jurisdiction clause . The question
       with the 4% default interest on ECU 251 649 owing                           arises, in other words, whether it is any longer
       since 1 May 1995 ;                                                          necessary to ascertain the will of the parties, despite
                                                                                   the fact that Article 17 uses the word 'concluded' ( in
2 . order the defendant to pay the costs of the                                    the Italian version ), which implies an expression of
       proceedings .                                                               will and thus 'commercial' usage (customary clauses ).
Pleas in law and main arguments adduced in support:                         ( b ) The second question concerns the meaning of the
The action is based on contract BM 488/88 DE-NL,
                                                                                    expression 'form which accords'. The first aspect
                                                                                   concerns the appearance of the clause , that is whether
signed by the parties on 4 December 1990. Under
                                                                                    it must necessarily be in writing signed by the party
Article 13 of that contract, the parties agreed that
                                                                                    who has drawn it up and who has therefore expressed
all disputes regarding the validity, interpretation and
                                                                                    the intention of relying upon it — for example — by
application of the contract should be referred to the Court
                                                                                    signing the bill of lading referring to a clause which
of Justice of the European Communities. The Commission
decided, in accordance with German law, to terminate the
                                                                                    in turn refers to an agreement conferring exclusive
                                                                                    jurisdiction, even in the absence of the signature of
contract by reason of the defendant's failure to implement
it .
                                                                                    the other party (the shipper ).
                                                                                    The second aspect consists in establishing whether it
                                                                                    is necessary for the jurisdiction clause to stand out
                                                                                    prominently on it own within the contract as a
                                                                                    whole, or whether it is sufficient ( and therefore of no
Reference for a preliminary ruling by the Corte Suprema                             consequence as regards the validity of the clause ) for
 di Cassazione by order of that court of 24 October 1996                            it to be inserted amongst numerous other clauses
 in the case of Societa Trasporti Castelletti Spedizioni                            drawn up in order to regulate the contract of carriage
           Internazionali SpA against Hugo Trumpy SpA                               in every respect.
                            ( Case C-159/97 )
                                                                                    The third aspect relates to the language in which the
                                ( 97/C 212/ 18 )                                    clause is drawn up, that is to say, whether it must be
                                                                                     in some way related to the nationality of the parties
 Reference has been made to the Court of Justice of the                              to the contract or whether it is sufficient for it to be a
 European Communities by order of the Corte Suprema di                               language regularly used in international trade or
 Cassazione ( Supreme Court of Cassation ) of 24 October                             commerce .
  1996, received at the Court Registry on 25 April 1997, for
 a preliminary ruling in the case of Societa Trasporti                        (c ) The third question is concerned with whether the
  Castelletti Spedizioni Internazionali SpA against Hugo                             court chosen must be in some way related to the
 Trumpy SpA on the following questions:                                              nationality and/or the residence of the parties to the
                                                                                     contract or to the place of performance and/or
  ( a ) First question: In the case-law of the Court of Justice                      conclusion of the contract, provided that it is a court
         relating to the original wording of Article 17 ( ] )                        of a Contracting State, or whether the latter condition
         reference has been made to the need to ascertain and                        is sufficient without there being any other link with
         protect the actual will of the parties with regard to                       the substance of the relationship .