Gerechtshof ’s-Gravenhage, uitspraak van 22/05/2008 C06/1115 Tes Installatietechniek B.V. / Miron C.S.
Decision by national courts in the field of European Union law — ECLI:NL:GHSGR:2008:BD2717
Date: 2008-05-22
Subject matter: Judicial cooperation in civil matters
Origin: Netherlands

82008NL0522(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The claimant, domiciled in the Netherlands, supplied the defendant, domiciled in Belgium, with goods over many years. The claimant always sent an order form to the defendant, whereby the defendant sent an invoice to the claimant. Reference was made on the invoices to the defendant’s general terms of sale printed on the other side of the page containing a jurisdiction clause in favour of the courts of Antwerp (BE).
The claimant lodged an action for breach of warranty before the Rechtbank of Rotterdam (NL). The defendant challenged the court’s jurisdiction and referred to its jurisdiction clause. The Rechtbank held it lacked jurisdiction. The claimant appealed to the Gerechthof of Gravenhage (NL) against this decision. The incorporation of the terms of sale occurred on the invoice and therefore only after the conclusion of the contract. Also, not all invoices contained such references.
The Hof of Gravenhage (NL) tests the effectiveness of the jurisdiction clause under Article 23(1)(b) Brussels I Regulation. The court determines that the claimant had the opportunity to inform herself at the time of receipt of the invoices of the terms of sale, which were printed on the other side and contained the jurisdiction clause, in the course of their delivery relations, but failed to object to them. The claimant must therefore be treated as if it has accepted the incorporation and content of these terms and conditions as a valid custom between these parties. The Hof leaves unanswered whether the incorporation actually occurred only after the conclusion of the contract. The invoices were in any case the defendant’s only statement on the orders. According to the ECJ (20.02.1997 C-106/95, Mainschifffahrt-Genossenschaft) such customary behaviour is expressly recognised in the meaning of Article 23(1)(b) Brussels I Regulation. Forgetting to include references on individual invoices does not make the customary practice invalid. The Hof refers the appeal.