On 8 February 2018, the Belgian Supreme Court (Court of Cassation) annulled a judgement of the Dutch speaking Commercial Court of Brussels which had assessed the substantive validity of a choice of jurisdiction clause under Belgian law rather than under the law of the Member State designed by the clause.

The dispute was between a well-known European airline whose head office isin another Member State than Belgium and a Belgian based claims harvesting company specialised in claiming compensation under Regulation (EC) No 261/2004. The airline invoked the jurisdiction clause stipulated in its general conditions. Given that the parties were domiciled in different Members States, the Commercial Court of Brussels verified the substantive validity of the choice of jurisdiction clause under Article 25 of the Brussels I Regulation (Recast).

Article 25 of the Regulation lays down the applicable criteria for both formal validity, which are set out in Article 25 itself, and substantive validity, which are to be determined under the law of the Member State referred to in the choice of jurisdiction clause.

Having examined and accepted the formal validity criteria under Article 25 of the Regulation, the Commercial Court of Brussels examined the substantive validity under Belgian law rather than under the law of the Member State referred to in the choice of jurisdiction clause.

The claims harvesting company lodged an appeal against this judgment with the Belgian Supreme Court. Whilst noting that the question as to whether or not a claims harvesting company may be characterized as a consumer is a question to be decided by the lower court, the Court of Cassation annulled the judgement on the grounds that it had wrongfully examined the substantive validity of the choice of jurisdiction clause under Belgian law rather than under the law of the Member State designated in the clause.