Hoge Raad; 2017-02-03; Holterman Fehro; 13/01256
Decision by national courts in the field of European Union law — ECLI:NL:HR:2017:133
Date: 2017-02-03
Subject matter: Judicial cooperation in civil matters
Origin: Netherlands

82017NL0203(51)_ENG_SUMJURE
JURE summary
JURE summary
Summary
Final judgment – Hoge Raad – 3rd February 2017 – ECLI:NL:HR:2017:133
Following the judgment of the Court of Justice of the European Union of 10 September 2015 in case C-47/14, Holterman Ferho Exploitatie BV, with reference to the judgment of 24 January 2014
Brussels I Regulation (1)
The defendant lived in Germany and worked as a director and manager of a company based in the Netherlands. The defendant was accused of misconduct in the performance of his duties and therefore held liable for the consequences. The company based in the Netherlands initiated the proceedings in the Dutch court. The defendant argued that the Dutch court did not have jurisdiction (to hear the case). The rechtbank (District court) declared itself as not having jurisdiction. The Gerechtshof (Hof, Higher court) confirmed this verdict.
The Hoge Raad (the Supreme Court) raised questions concerning the relationship between jurisdiction provisions contained in Chapter II, Section 5 (Articles 18 to 21) of the Brussels I Regulation on the one hand, and the jurisdiction provisions contained in the introductory sentence of Article 5, in Article 5(1)(a) and Article 5(3) of the Brussels I Regulation, on the other hand.
The Court of Justice of the European Union in its judgment (case C-47/14) ruled that Article 5(1) and (3) should not apply, provided that the (accused) person, in his capacity as director or manager, for a certain period of time performed services for and under the direction of the (suing) company in return for which he received remuneration, that being a matter for the national courts to determine.
In the final judgment, the Hoge Raad ruled that there clearly existed an employment contract. Therefore, the introductory sentence of Article 5 and Articles 5(1) and (3) of the Brussels I Regulation were not applicable. According to Article 20 of the Brussels I Regulation, not the Dutch courts, but the German courts instead had jurisdiction over this case.
3.5 (…) [defendant] also presented the opinion, that he had entered an employment contract with [plaintiff 1] as a manager and referred to the employment contract provided by [the plaintiff]. The Hof in point 4.5. considered that [plaintiff 1] “did not provide any facts justifying the allegations that the legal relationship that existed between them shall not be qualified as an employment contract within the meaning of Article 18 of the Brussels I Regulation".
3.6. The aforementioned means that the Hof has correctly held that the rechtbank Almelo (now the rechtbank Overijssel) has no jurisdiction to hear the claim brought by [plaintiff 1] against [defendant]. In the light of the answer (of the Court of Justice of the European Union) to the first question and together with what was considered in point 3.5, the introductory sentence of Article 5 and Article 5(1) and (3) of the Brussels I Regulation are not applicable in this case. Furthermore, Article 20(1) of the Brussels I Regulation indicates that the claim of [plaintiff 1] against [defendant] may be brought only in the courts of the Member State in which [defendant] is domiciled, namely Germany.
(1) Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.