Gerechtshof Amsterdam; 2018-12-18; Cancun; 200 201 717
Decision by national courts in the field of European Union law — ECLI:NL:GHAMS:2018:4696
Date: 2018-12-18
Subject matter: Judicial cooperation in civil matters
Origin: Netherlands

82018NL1218(51)_ENG_SUMJURE
JURE summary
JURE summary
Gerechtshof Amsterdam - 18 December 2018 - ECLI:NL:GHAMS:2018:4696
The Brussels I Regulation (1)
A private limited company, called Cancun, domiciled in the Netherlands (hereinafter ‘the plaintiff’) holds shares in companies domiciled outside the European Union, namely in the companies Efesyde and Vesta. Efesyde is a company which owns a hotel complex in Mexico, whilst Vesta makes reservations for this hotel. The defendant in this case was one of the directors of the plaintiff. In the Vesta company, a new board of directors was appointed to ensure that the reservation fees went to Efesyde and not to Cancun. Furthermore, Efesyde issued new shares to third parties which resulted in a reduction of Cancun’s shareholding percentage to only 0,13 %.
The defendant was a Spanish national domiciled in Spain. There were proceedings against him in which was established the misconduct in the performance of plaintiff’s duties and the defendant, together with other directors, were held liable for that. Subsequent appeals to the Hoge Raad (Supreme Court) were dismissed.
The plaintiff brought an action for a declaratory judgment to confirm that the defendant was guilty of improper management and liable for the damages. Similar proceedings were pending before the rechtbank Amsterdam (hereinafter ‘the Court of First Instance’) against other directors.
The plaintiff requested to join the cases. The defendant alleged a lack of jurisdiction of the Dutch courts to hear the case.
The Court of First Instance invoked the judgment of the Court of Justice of the European Union (CJEU) in Case C-47/14 (2) and confirmed the lack of its jurisdiction.
The Gerechtshof Amsterdam (hereinafter ‘the Court of Appeal’) reached a different conclusion. The Court of Appeal held that there was no contract of employment between the parties. Since the plaintiff’s claim cannot be subsumed under the fulfilment of obligations arising from a contract of employment, the question of jurisdiction of the Dutch courts cannot be governed by Articles 18 to 21 of the Brussels I Regulation. However, the claim regards a legal relationship under company law, according to which the defendant undertook to perform the duties of a director and the plaintiff undertook to appoint the defendant to this function and to give him an opportunity to exercise the duties and powers related to this function. Since the plaintiff’s claim is based on the failure of the defendant to properly perform his director’s duties under company law, the claim relates to the concept of ‘contractual obligations’ within the meaning of the Brussels I Regulation. (point 3.7 of the judgment)
The defendant did not receive any financial compensation from the plaintiff for performing his director’s duties. The parties did not agree on such compensation. The activities of the defendant performed as a member of management board therefore do not fall under the term ‘provision of services’ as provided by Article 5(1)(b) of the Brussels I Regulation. Thus, the question of jurisdiction must be assessed pursuant to the introductory sentence of Article 5 in conjunction with Article 5(1)(a) of the Brussels I Regulation. For that purpose, it must be determined the place where the commitment of the defendant to properly fulfil the duties of a director was carried out or should have been carried out. (point 3.8 of the judgment)
The plaintiff has its registered office in Amsterdam, so it can be concluded precisely that Amsterdam shall be regarded as the place where the defendant fulfilled his director’s duties under the company law and, consequently, also as the place where his commitment to properly fulfil his duties as requested by Article 2:9 of the BW (3) was carried out. Therefore, the Dutch courts have jurisdiction and it is the Court of First Instance who has jurisdiction to hear the case concerning the alleged misconduct of the defendant in proper performance of his director’s duties. Contrary to what the defendant alleged at the first instance proceedings and contrary to what the Court of First Instance considered in its judgment, the application of Case C-47/14 cannot lead to a different conclusion than the one provided here by the Court of Appeal, even if the factual situation in cited CJEU’s judgment differed. The person mentioned in Case C-47/14 performed his director duties for a fee and, therefore, in lack of a contract of employment, the performance of his director duties have been covered by the concept of ‘provision of services’ pursuant to Article 5(1)(b) of the Brussels I Regulation. In Case C-47/14, the jurisdiction (in lack of contract of employment) was based on Article 5(1)(b) of the Brussels I Regulation, whilst the jurisdiction in the present case is based on Article 5(1)(a) of the same Regulation. It also shall be noted that even if the question of the place of performance of the defendant’s duties was considered from the perspective of the judgment in Case C-47/14 (where the services were provided or should have been provided), it still would not lead to a different conclusion as the one given above, for the same reasons as provided here by the Court of Appeal. (point 3.10 of the judgment)
The Court of Appeal annulled the first instance decision.
(1) Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
(2) Judgment of the Court of 10 September 2015, Holterman Ferho Exploitatie BV and Others v F.L.F. Spies von Büllesheim, C-47/14, ECLI:EU:C:2015:574.
(3) Burgerlijk Wetboek (Civil Code).