EJTN training April Workshop 1: Contractual obligations (Eline Ulrix) Case 1

Transcription

1 EJTN training April 2016 Workshop 1: Contractual obligations (Eline Ulrix) Case 1 FRO-YO SA/NV is a company incorporated in Belgium which produces a new type of frozen yoghurt, offering a whole array of new flavours and toppings. After their early success in Belgium, which is reported in the press, they are contacted by a representative of the Dutch company ICE AGE BV, who would like to distribute FRO- YO s products among their chain of ice cream parlours all over The Netherlands. FRO-YO accepts the proposal because it would indeed like to expand its business and distribute its frozen yoghurt in other EU Member States. FRO-YO and ICE AGE work out the details of their cooperation. ICE AGE will have the exclusive right to distribute FRO-YO s products in The Netherlands. The parties decide that each week, FRO-YO will deliver 1,000 litres of frozen yoghurt to the central depot of ICE AGE in Rotterdam. The deliveries are billed on a monthly basis. It is stated on the invoices that these have to be paid into FRO-YO s Belgian bank account. FRO-YO carries out the necessary quality control of its products at its Belgian factory. FRO-YO also agrees that every three months a representative of FRO-YO will visit the ice cream parlours of ICE AGE to make sure the machines dispensing the frozen yoghurt are adjusted correctly and to give training to new employees on how to use the machines. a) After its launch in June 2015, FRO-YO s frozen yoghurt is immediately very popular in The Netherlands. However, during the winter months less people buy frozen yoghurt and ICE AGE continues to accept FRO-YO s deliveries but no longer pays the invoices issued by FRO-YO. On 10 March 2016, FRO-YO sues ICE AGE before the Commercial Court of its seat in Belgium for payment of the last four unpaid invoices. Do the Belgian courts have jurisdiction to hear its claim? b) One month later, FRO-YO receives a phone call from one of ICE AGE s competitors who would also like to distribute FRO-YO s products. FRO-YO seizes this opportunity and decides to immediately terminate its cooperation agreement with ICE AGE. ICE AGE is less than happy with this decision temperatures are rising and they were hoping to sell a lot more frozen yoghurt in the coming months. ICE AGE would like to initiate a claim against FRO-YO for wrongful termination of their agreement. Which court(s) have jurisdiction to hear this claim? 1

2 Case 2 Mr ROSSI is an Italian chef who has opened a restaurant in Vienna. Mr ROSSI wants to put his famous tagliatelle al tartufo on the menu during the month of November 2015 and therefore calls Mr BIANCO, an old friend who lives in the Piedmont region in Italy, to buy white truffles from him. During November 2015, Mr BIANCO makes four deliveries of truffles to Mr ROSSI s restaurant and accordingly issues four separate invoices. Mr BIANCO s general terms and conditions, which are printed on the bottom of each invoice, provide that the courts of Turin, Italy have exclusive jurisdiction over any claims that arise from the sale between the parties. In April 2016, Mr ROSSI still hasn t paid Mr BIANCO for the truffles. Mr BIANCO decides to sue Mr ROSSI. a) Which court(s) have jurisdiction? b) Does your answer to the previous question change if Mr ROSSI and Mr BIANCO had entered into a written agreement with a choice-of-court clause in favour of the courts of Turin, before the first delivery took place? c) Does your answer to question a) change if you know that almost every truffle farmer in Italy uses the same general terms and conditions when they sell their truffles abroad, at the recommendation of the Italian Truffle Growers Association? Case 3 The Belgian company ABC gave a loan to its managing director, Mr X, who is domiciled in the UK. When ABC is sold, the new owners institute proceedings against Mr X to force him to repay the loan. Which courts have jurisdiction? Explain. * Under Belgian law debts are to paid at the debtor s place of residence. 2

3 Workshop 2: Consumers and other protected parties (Thalia Kruger) Case 1 Ms Eva Petrova is a Polish citizen, living in Poland. Her aunt, Agnieszka Petrova is also Polish but lives in Austria. In January 2016 Ms Agnieszka suddenly died. Eva was appointed as beneficiary in her life insurance contract, which she had concluded with an Austrian insurance, AUSTINS. At first AUSTINS paid the entire amount to Eva. However, they now want to claim the money back, as they aver that Agnieszka did not die of natural causes. Eva refuses to pay the money back. AUSTINS institutes proceedings in Austria. The Insurance contract contained a choice-of-forum clause for the court in Vienna. Eva appears before you in Vienna and does not seem to contest the court s jurisdiction. a) Can Eva be considered a protected party under Brussels I (Recast)? Explain. b) Is Eva bound by the choice of forum? Explain. c) Does Eva s appearance grant jurisdiction to the court in Vienna? Explain what the judge must verify in order to answer this question. Also consider the difference with the 2000 version of Brussels I. Case 2 Testaankoop is a Belgian consumer organisation which aims to protect the interests of consumers on the Belgian market. It institutes proceedings against Easyjet, which has its main seat in London. The purpose of the action is an injunction for cessation of the use of what Testaankoop considers unfair contract terms. a) Which court(s) have jurisdiction over this claim? b) Is it relevant that Easyjet s terms and conditions, that it uses in all contracts with travellers, refer to the exclusive jurisdiction of the courts of England and Wales? Case 3 Fatma is a Turkish citizen who lives in Bulgaria. She orders a coffee machine and various accessories for it online from a Turkish shop. The shop s website is accessible only in Turkish. The shop delivers the machine to Fatma s address in Bulgaria within two days. Before using the machine, Fatma realises that she has made a mistake: the machine was far too expensive and she prefers to go to a coffee shop for company. She sends the machine back. The Turkish shop refuses to return her payment. Fatma institutes proceedings in Sofia. The Turkish shop contests the jurisdiction of the Sofia court, referring to its terms and conditions, which confer exclusive jurisdiction on the Turkish courts. It further states that Fatma had accepted the terms and conditions by checking the box on its website. a) Does the court in Sofia have jurisdiction? Explain. The Turkish shop thereafter institutes proceedings at a court in Turkey, requesting a declaration of non-liability. b) What effect should the court in Sofia grant to the proceedings in Turkey? 3

4 Workshop 3: Recognition and Enforcement (Jan von Hein) Case 1. Basic notions of "judgment" and "recognition" In 2014, Krones AG ( Krones ), a German company, sold a brewing installation to a purchaser, Cerveceria Cuauthemoc Monezum ( the recipient ), a Mexican undertaking. Krones charged Samskip Holding BV, a transport and logistics undertaking founded in Iceland and established in the Netherlands, with the task of organising and providing the transport of that installation from Antwerp (Belgium) to Guadalajara (Mexico), via Altamira, another city in Mexico. The consignment, which consisted of containers and transport frames, was delivered to Samskip on 13 August On that same day, Samskip drew up the bill of lading designating Krones as the shipper, the recipient as the consignee, Antwerp as the port of loading and Altamira as the port of destination. Krones claims that the consignment was damaged during the transport. In February 2015, Krones brought an action for compensation before Belgian courts. The Hof van beroep te Antwerpen (Court of Appeal, Antwerp, Belgium), however, dismissed this action as inadmissible on the ground that the bill of lading contained a jurisdiction clause stating that any dispute arising thereunder was to be decided by Icelandic courts according to Icelandic law. That judgment has become final. In September 2015, Krones brought another action for compensation against Samskip before the Landgericht Landshut (Regional Court, Landshut, Germany). Questions: a) Is the German court bound to recognise the judgment of the Belgian court? b) If so, does the scope of such recognition extend to the reasons for judgment contained therein as well, i.e. is the German court required to recognise the judgment of the Belgian court on the effectiveness of the jurisdiction clause agreed on by the parties and, consequently, to dismiss the case? Case 2. Public policy, the right to be heard and judgments without reasons On 20 January 2015, Mr and Mrs A, who reside in Germany, were served with a document stating that a claim for payment of a debt had been lodged against them with the District Court of K, a city in E, a Member State of the Brussels I recast Regulation and the European Service Regulation, by Mr and Mrs O, who are resident in this State. The District Court informed Mr and Mrs A that they were required to communicate to it, within one month, the name of a representative in E who was authorised to accept service of judicial documents, and that, if they failed to do so within that period, any documents addressed to them would be placed in the case file and would be deemed to have been effectively served. As Mr and Mrs A failed to indicate a representative authorised to accept service in E, the notice addressed to them relating to the time of a hearing scheduled for 5 June 2015 and a copy of the applicants reasons supporting the claim submitted were placed in the case file and deemed to have been served on the defendants by virtue of the rule in Article of the Code of Civil Procedure. This provision states: 1. A party whose place of residence or habitual abode or registered office is outside the Republic of E and who has not appointed, for purposes of the conduct of proceedings, an authorised representative resident in the 4

5 Republic of E must appoint a representative who is authorised to accept service of documents in the Republic of E. 2. If no representative authorised to accept service is appointed, judicial documents addressed to that party shall be placed in the case file and shall be deemed to have been effectively served. The party must be notified to that effect at the time of the first service. That party must also be informed of the possibility of submitting a response to the document initiating the proceedings and written statements of position, and must also be informed of those persons who can be appointed as an authorised representative. Mr and Mrs A did not appear at the scheduled hearing, at which the District Court examined the evidence adduced and closed the hearing. On the same day, a judgment was delivered awarding the claim against the defendants. The court neither set out in its judgment the grounds on which it was adopted nor gave any argument on the substance of the request. That judgment was not challenged and has therefore acquired the force of res judicata. On 29 October 2015, Mr and Mrs A. introduced an application to the Higher Regional Court of K, requesting that the proceedings in the dispute concerning payment be resumed, that the judgment be set aside and that the case be considered afresh. They argued, inter alia, that they had been deprived of the opportunity to participate in the proceedings for payment because the notice relating to the scheduled time of the hearing had not in fact been served on them. By a judgment of 23 December 2015, the Higher Regional Court rejected the request for resumption of proceedings. Question: Must the judgment given on 5 June 2015 by the District Court of K be recognised in Germany? Case 3. Domestic grounds for refusing enforcement Compliance with the judgment in the State in which it was delivered In 2014, the Finnish bank Postipankki made a loan of EUR to a German company, Plasm Investments Germany GmbH. The contract contained a jurisdiction clause in favour of the Rechtbank van Koophandel te Brussel (Commercial Court, Brussels) (Belgium). By judgment of this court of 14 January 2015, Plasm was ordered to pay to Postipankki the sum lent in Postipankki now seeks to enforce this judgment in Germany. Plasm, however, submits an application for refusal of enforcement which it bases on not having been properly served (Article 45(1)(b) Brussels I recast). In addition, Plasm maintains that the judgment of the Belgian court has already been complied with in Belgium by means of a financial settlement. Questions: a) May Plasm invoke its compliance with the Belgian judgment as a ground for refusing the decision s enforcement before German courts? b) If so, is Plasm forced to institute separate proceedings or may it raise this objection in the procedure provided for in Section 3, Subsection 2 of Brussels I recast (Articles 46 et seqq.) as well? 5

6 Annex: German Code of Civil Procedure For actions raising an objection to the claim being enforced under the Brussels I recast Regulation, section 1117(1) of the German Code of Civil Procedure provides that section 1086, which relates to the European Order for Uncontested Claims, shall be applied by way of an analogy. Section 1086 reads as follows: Section 1086 Action raising an objection to the claim being enforced (1) For actions brought pursuant to section 795, 1st sentence, in conjunction with section 767, that court shall have exclusive local jurisdiction in the district of which the debtor has his place of residence, or, lacking such place of residence in Germany, that court in the district of which compulsory enforcement is to take place or has already taken place. The seats of societies or legal persons shall be equivalent to the place of residence. (2) Section 767 (2) is to be applied mutatis mutandis to court settlements and public records or documents. Section 767 Action raising an objection to the claim being enforced (1) Debtors are to assert objections that concern the claim itself as established by the judgment by filing a corresponding action with the court of first instance hearing the case. (2) Such objections by way of an action may admissibly be asserted only insofar as the grounds on which they are based arose only after the close of the hearing that was the last opportunity, pursuant to the stipulations of the present Code, for objections to be asserted, and thus can no longer be asserted by entering a protest. (3) In the action that he is to file, the debtor must assert all objections that he was able to assert at the time at which he filed the action. 6