Gerechtshof Amsterdam; 2018-06-05; Brightec; 200.233.069
Decision by national courts in the field of European Union law — ECLI:NL:GHAMS:2018:1874
Date: 2018-06-05
Subject matter: Judicial cooperation in civil matters
Origin: Netherlands

82018NL0605(51)_ENG_SUMJURE
JURE summary
JURE summary
ECLI:NL:GHAMS:2018:1874 Gerechtshof Amsterdam (hereinafter ‘the Court of Appeal’), 05-06-2018, 200.233.069/01
Articles 4, 25 and 35 of the Brussels I Regulation (recast) (1)
A company Brightec (hereinafter ‘the plaintiff’), domiciled in the Netherlands, is a developer and seller of air curtains designed to be used in transport vehicles. The defendant in this case was an intermediary who used to sell and deliver these products in France, Belgium and Luxembourg. The sales contracts had always been concluded in the name and on behalf of the plaintiff. The defendant used to receive remuneration in the form of commission. The parties to this dispute negotiated different drafts of their further trade relationship, however, they never reached a final agreement. After six years, the defendant orally terminated the partnership between the parties. The parties had not reached a consensus on their settlement. The plaintiff turned to legal action and sought to prohibit the defendant from offering air curtains produced by competitive manufacturers to the plaintiff. The Dutch Court of First Instance declared a lack of its jurisdiction to hear the case. The defendant is of Dutch nationality, but he lives in France. Pursuant to the general principle stipulated in Article 4 of the Brussels I Regulation (recast) – as applicable since 10 January 2015 – the jurisdiction over the claims brought by the plaintiff shall lie with the courts in France. This principle may be overruled neither by the fact that the defendant is of Dutch nationality, nor that the plaintiff is domiciled in the Netherlands, namely in Amsterdam, nor that the parties have always used in their mutual communication and correspondence the Dutch language. Nevertheless, in accordance with Article 25(1) of the Brussels I Regulation (recast), the Dutch court may have jurisdiction if the parties have agreed that a Dutch court is to have jurisdiction to settle any disputes which have arisen, or which may arise between them. The plaintiff relied on this article and referred to the jurisdiction clause agreed in favour of the Dutch court, included in several draft agreements exchanged previously between the parties. The Court of Appeal held that the parties had not reached a lawful consensus on the exclusive choice-of-court agreement. A different conclusion would mean that the defendant would be restricted on his right of access to the court under Article 4 of the Brussels I Regulation (recast), and this is only because the defendant did not expressly object to the choice-of-court clause included in the draft agreements submitted to him. Under such circumstances, the competent court may have been changed anytime, and, taking into consideration the pending negotiations of the trade relations, it may have been changed even without discussion between the parties. This would be contrary to the requirement  of the  agreement conferring jurisdiction as laid down by Article 25(1) of the Brussels I Regulation (recast). The Court of Appeal held that the Dutch courts lacked jurisdiction over the dispute and upheld the first instance decision.
(1) Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.