Unfair Contract Terms Directive, Article 3, 1. Unfair Contract Terms Directive, ANNEX I, 1., (q)

A choice of forum clause, obliging a consumer to seize a judge other than the judge of the domicile of the consumer and obliging the consumer to conduct its proceedings in a language other than its mother tongue, constitutes an unfair term under Directive 93/13.

The plaintiffs signed an agreement with the defendant, a construction company, to build a house. Certain sanitary problems were first detected. Next to this, several other defaults were established in the house.

The plaintiffs filed a complaint against the defendant before the court of Hainaut. The defendant, however, argued that the court was not competent to rule on the matter given that its standard contract contained a choice of forum clause referring to the courts in Courtrai.

Does a choice of forum clause, obliging a consumer to seize a judge other than the judge of the domicile of the consumer and obliging the consumer to conduct its proceedings in a language other than its mother tongue, constitute an unfair term under Directive 93/13?

The court first considers that the plaintiffs qualify as consumers, allowing them to invoke the relevant provisions from the Belgian Code of Economic Law, amongst others implementing the provisions as stated in the Directive 93/13.

Next, the judge reminds that Belgian consumer laws provide that choice of forum clauses are considered unfair where they appoint a judge other than that as appointed in the Belgian Procedural Code, which (amongst others) refers to the judge of the residence of the defendant as the competent judge.

However, so rules the court, this provision is intended to regulate situations where a complaint is filed by a trader and not a consumer, as otherwise (i.e. in case of complaints made by a consumer) the judge of the place of incorporation of the trader would be the competent judge. In the case at hand, this would mean that the plaintiffs would need to seize a judge which is situated far away from the residence of the plaintiffs, and which would oblige them to conduct proceedings in a language other than their mother tongue (as the plaintiffs are residents of the French-speaking part of Belgium, whereas the court indicated in the contractual terms is situated in the Dutch-speaking part of Belgium).

Such clause is considered by the judge to be unfair and contrary to the provisions of Directive 1993/13, as implemented in Belgian law.

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Geen resultaten

Geen resultaten

The court ruled that the contractual clause in question is unfair and considers it null and void. Consequently, the court ruled on its territorial competence in the case.