Gerechtshof Amsterdam; 2021-01-12; Cancun holding II; 200.201.717/01
Decision by national courts in the field of European Union law — ECLI:NL:GHAMS:2021:546
Date: 2021-01-12
Subject matter: Judicial cooperation in civil matters
Origin: Netherlands

82021NL0112(51)_ENG_SUMJURE
JURE summary
JURE summary
ECLI:NL:GHAMS:2021:546, Gerechtshof Amsterdam (hereinafter ‘the Court of Appeal’), 12 January 2021, 200.201.717/01 Rechtspraak.nl
The defendant lives in Spain. In 2009, he was a director of the company ‘Cancun’, domiciled in the Netherlands and operating also in Mexico. This case regards a claim brought by Cancun against the defendant for improper performance of his duties as managing director. The rechtbank Amsterdam (‘the Court of First Instance’) ruled that the Dutch courts lacked jurisdiction to hear these claims. Following the repeal, the Court of Appeal issued a default judgment according to which the Dutch court did have jurisdiction. The defendant objected to such a conclusion. He argued that Cancun had not validly served the writ of summons to the appeal procedure and that the Dutch court had no jurisdiction.
Does the Dutch court have jurisdiction? The Court of Appeal held that the defendant’s obligation under company law should have been performed and was performed in the Netherlands.
The Court of Appeal held that it was not proved that the defendant’s duties as a director of company Cancun required his physical presence in Spain for whatever reason. The mere fact that the defendant was physically in Spain when he performed these management duties does not necessarily mean that he must be regarded as having performed those duties from Spain. This single fact does not alter the considerations based on the Opinion (1) cited in point 3.12 of this judgment. Accordingly, he must be deemed as having carried out his duties in Amsterdam, remotely, from Spain.
3.17 (…) Amsterdam was the place of performance of the defendant’s obligations not only under the company law but also under the contract, if and insofar as it can be assumed that a contract for the provision of services was concluded between the parties.
3.18 (…) Amsterdam was also the place where the harmful event occurred, as referred to in Article 5(3) of the Brussels I Regulation (2), if and insofar as it can be assumed that the opponent acted unlawfully towards Cancun.
The Court of Appeal dismissed the objection.
(1) Opinion of Mr Advocate General Cruz Villalón delivered on 7 May 2015, Holterman Ferho Exploitatie BV and Others v Friedrich Leopold Freiherr Spies von Büllesheim, C-47/14, ECLI:EU:C:2015:309.
(2) Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.