Hof Arnhem, uitspraak van 16/01/2010 2004/1107
Decision by national courts in the field of European Union law — ECLI:NL:GHARN:2007:BA0181
Date: 2010-01-16
Subject matter: Judicial cooperation in civil matters
Origin: Netherlands

82010NL0116(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The defendant, domiciled in the Netherlands, supplied pig fodder to the plaintiffs A and B, domiciled in Germany since 1997. The parties argued before the Rechtbank of Arnhem (NL) whether the defendant must pay damages to the plaintiffs due to inadequate fodder deliveries.
The Rechtbank of Arnhem (NL) took jurisdiction on grounds of a jurisdiction clause included in the general terms and conditions of the defendant. The plaintiffs filed a motion to appeal this decision with the Gerechtshof of Arnhem (NL), which found the jurisdiction clause was not validly agreed to by both parties. The defendant had not advised plaintiff B at all about his general terms and conditions, and had done so for plaintiff A only incidentally on the invoices. The terms and conditions were never supplied to the plaintiffs, nor brought to their attention in any other way.
The Hof of Arnhem (NL) finds that a valid agreement conferring jurisdiction under Article 23(1) Brussels I Regulation was not created. The defendant never made it clear to the plaintiffs that he intended to include the jurisdiction clause from his general terms and conditions as part of the contractual terms with the plaintiffs. There is nothing to suggest that the plaintiffs gave their consent, nor that the parties themselves had established such a practice regarding the matter. Because the defendant himself, through his irregular notices on his invoices, caused the plaintiffs to be unclear, the plaintiffs were not obligated to question the defendant as to the contents of the general terms and conditions. This is all the more true for plaintiff B, who received absolutely no notice. The jurisdiction of the Rechtbank of Arnhem does not derive from any other source. The Hof of Arnhem sets aside the lower court decision from the Rechtbank of Arnhem for lack of jurisdiction.