Gerechtshof Arnhem, uitspraak van 01/07/2008 107.001.675/01 Feil Handelsonderneming B.V. vs. Troy Foods Ltd.
Decision by national courts in the field of European Union law — ECLI:NL:GHARN:2008:BD6258
Date: 2008-07-01
Subject matter: Judicial cooperation in civil matters
Origin: Netherlands

82008NL0701(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The plaintiff, seated in the Netherlands, had a continuous business relationship with the defendant, seated in England. The plaintiff demanded payment of outstanding invoices in interim proceedings before the Rechtbank of Zwolle-Lelystad (NL). The Rechtbank declared itself lacking in jurisdiction. The plaintiff appealed to the Gerechtshof of Arnhem (NL). It cited a jurisdiction clause in its general terms and conditions of delivery. A reference was made to "standard delivery terms" in a contract from 25.08.2005. The plaintiff argued that phrase meant its general terms and conditions of delivery containing the jurisdiction clause. The plaintiff argued that, relying on Article 23(1)(b) Brussels I Regulation, it had referred to its terms and conditions of delivery on hundreds of its invoices since 2003, and produced another invoice as evidence. Finally, the plaintiff referred to the applicability of the terms and conditions of delivery in an email on 14.11.2005 and the defendant did not protest.
The Hof of Arnhem (NL) finds that the plaintiff has not sufficiently proven the inclusion of the terms and conditions of delivery in the contract from 25.08.2005. With regard to the question whether the jurisdiction clause was included, the contract between the parties is to be interpreted independently, and not according to applicable relevant law. The plaintiff cannot sufficiently prove inclusion of the terms and conditions of delivery pursuant to Article 23(1)(b) Brussels I Regulation before the closing of the contract by producing a single invoice with a reference to the terms. Even the email dated 14.11.2005 is not sufficient to infer the defendant's consent. The plaintiff has also not sufficiently proven a common trade use within the meaning of Article 23(1)(c) Brussels I Regulation. As interim proceedings do not allow for an extensive taking of evidence, the Rechtbank was correct to declare itself lacking in jurisdiction. The Hof dismisses the appeal.