Gerechtshof Den Haag; 2022-02-22; K+H; 200.292.709/01
Decision by national courts in the field of European Union law — ECLI:NL:GHDHA:2022:905
Date: 2022-02-22
Subject matter: Judicial cooperation in civil matters
Origin: Netherlands

82022NL0222(51)_ENG_SUMJURE
JURE summary
JURE summary
The Gerechtshof Den Haag (hereinafter ‘the Court of Appeal’) - 22 February 2022 - ECLI:NL:GHDHA:2022:905
Agreement conferring jurisdiction – Mutual consent
Between June 2017 and October 2017, the Dutch company Kühne + Heitz Holland (hereinafter ‘the plaintiff’) sold and delivered several consignments of various meat products to the British company Euro Foods (hereinafter ‘the defendant’). The defendant left the relevant invoices unpaid.
The question is whether the Dutch courts have international jurisdiction to hear a claim for payment (on account of supplies) which the plaintiff, domiciled in the Netherlands, had brought before the Dutch courts against the defendant, domiciled in the United Kingdom. The plaintiff relied on an agreement conferring jurisdiction. However, the Rechtbank Rotterdam (hereinafter ‘the Court of First Instance’) held that there was no mutual consent in that regard and dismissed the plaintiff’s claim, declaring that it lacked jurisdiction. The plaintiff appealed against that decision.
6.6. It should be noted that the notice of the agreement conferring jurisdiction used by the plaintiff was communicated in such a way,  namely on the front of both the sales confirmations and the invoices, that the defendant could reasonably have been aware of it. The defendant, which does not deny that it was aware of it, did not at any time object to the choice of the Court of First Instance. (...)
6.7 The present case is, therefore, not (so much) a battle of forms, in which parties refer to general terms and conditions containing an agreement conferring jurisdiction, but rather a situation in which one party (the plaintiff) in an ongoing commercial relationship constantly draws the attention of the other party (the defendant’s) to an agreement conferring jurisdiction. The other party does not object, but merely refers to the general terms and conditions available on its website, which contains an agreement conferring jurisdiction. In these circumstances, the plaintiff did not need to be aware that its choice of jurisdiction did not have the consent of the defendant.
Therefore, the parties were deemed to have designated the Dutch court to hear/settle their present dispute.
The Court of Appeal set aside the judgment of the Court of First Instance, dismissed the plea of lack of jurisdiction, and declared that the Court of First Instance had international jurisdiction to hear the plaintiff’s claims.