Gerechtshof ‘s-Hertogenbosch; 2019-03-26; Appellant; 20015962401
Decision by national courts in the field of European Union law — ECLI:NL:GHSHE:2019:1144
Date: 2019-03-26
Subject matter: Judicial cooperation in civil matters
Origin: Netherlands

82019NL0326(51)_ENG_SUMJURE
JURE summary
JURE summary
Gerechtshof ’s-Hertogenbosch (hereinafter ‘the Court of Appeal’) – 26 March 2019 - ECLI:NL:GHSHE:2019:1144
The Brussels I Regulation (1)
A cyclist (hereinafter ‘the defendant’) had signed a representation contract with a company HHL, through which he entered into contract with a Belgian cycling team. The defendant had already partly paid for the services provided under this representation contract. A company called Cycle Beheer (hereinafter ‘the plaintiff’) claimed that it had taken over the contracts of HHL and claimed a payment amounting to EUR 83 250 (hereinafter ‘the original claim’). The defendant lodged a counter-claim in which he sought a declaration that his contract has not been transferred to the plaintiff, that the representation agreement submitted by the plaintiff could not be considered to be signed by him and that he had no further commitments to the plaintiff.
There was a dispute concerning the jurisdiction of the Dutch courts over this dispute. The defendant alleged that the Dutch courts have jurisdiction only over the counter-claim, but that they lack jurisdiction over the original claim.
This question must be assessed on the basis of the Brussels I Regulation. This Regulation applies temporally to this case on the basis of its Article 76 in conjunction with Article 66(1), since the summons was issued on 12 November 2012. There is also grounds for a material application of the Brussels I Regulation, as the subject of the dispute falls within the concept of ‘civil and commercial matters’ as provided by Article 1 of the Brussels I Regulation, and, at the same time, the exceptions stipulated by the same Article 1 do not apply to this case. The Brussels I Regulation also applies because the defendant was domiciled in Belgium, a Member State of the European Union.
The rechtbank Zeeland-West-Brabant (hereinafter ‘the Court of First Instance’) based its jurisdiction on an interpretation of Article 6(3) of the Brussels I Regulation in conjunction with Article 27 and seq. of the same Regulation (‘Lis pendens – related actions’) (point 3.5.).
The counter-claim filed by the defendant at the first instance must be linked to the original claim submitted by the plaintiff. The Court of First Instance held that such a connection exists here. The original claim was based on existence of a representation agreement, while the counter-claim sought the declaration of the non-existence of such agreement between the parties. Therefore, the counter-claim arises from the same facts on which the original claim was based (see also judgment of the Hoge Raad (Supreme Court) of 8 December 2017). (point 3.6.).
However, contrary to what the Court of First Instance considered, the Court of Appeal held that Article 6(3) of the Brussels I Regulation does not provide a basis for jurisdiction over the counter-claim, which is separate to the original claim. Article 6(3) provides a supplementary jurisdictional rule according to which the lack of jurisdiction over the original claim determines also the assessment of the jurisdiction over the counter-claim but not vice-versa. This cannot be changed by the provisions concerning lis pendens and related actions, as suggested by the Court of First Instance, because these provisions serve only to restrict the jurisdiction, not to establish the jurisdiction. However, this does not necessarily mean that the Court of First Instance erred in consideration of its jurisdiction. (point 3.7.)
The Court of Appeal upheld the conclusion of the Court of First Instance of 23 July 2014 but enhanced the grounds on which it was to be based.
(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.
(2) ECLI: NL: HR: 2017: 3105.