Rechtbank ’s-Hertogenbosch, uitspraak van 14/01/2009 174148 HA ZA 08-809 Winters c.s. / Krones c.s
Decision by national courts in the field of European Union law — ECLI:NL:RBSHE:2009:BH0042
Date: 2009-01-14
Subject matter: Brussels Convention of 27 September 1968
Origin: Netherlands

82009NL0114(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
Both plaintiffs are businesses domiciled in Maarheeze (NL) and in Belgium. The three defendants are businesses domiciled in the Netherlands, Belgium, and Germany. The defendants delivered a packing machine to the plaintiffs. After the machine proved defective and the requested servicing was never performed, the plaintiffs withdrew from the contract. The plaintiffs seek damages in this action for breach of contract. As, according to the plaintiffs, the machine was delivered in Maarheeze, the Rechtbank of ‘s-Hertogenbosch (NL) has jurisdiction under Article 5(1) Brussels I-VO.
The defendants contest the jurisdiction of the court, citing a jurisdiction clause in the sales contract that confers jurisdiction on the court in Dendermonde (BE). In addition, two of the three defendants were not parties to the contract with the plaintiffs.
The Rechtbank of ‘s-Hertogenbsoch (NL) rules that it has jurisdiction based on the statements made by the plaintiffs in their brief as to the execution and ultimate performance of the contract, according to which all five parties to the action were contracting parties.
A jurisdiction clause supersedes the jurisdiction of the court of the place of performance, so the first test is whether the parties created a valid agreement conferring jurisdiction for the purposes of Article 23 Brussels I-VO. According to the undisputed facts, the plaintiffs made a written offer to the defendants to agree to confer jurisdiction on the court in Dendermonde. In their written response, the defendants did not explicitly accept the jurisdiction clause, but broadened the clause to make a choice of law in favour of Belgian law without further specifications.
This behaviour leaves no doubt in the mind of the court as to the defendants’ agreement to the proposed choice of jurisdiction. The court in Dendermonde has exclusive jurisdiction.
The Rechtbank of ‘s-Hertogenbosch (NL) declares itself not to have jurisdiction.