Gerechtshof 's-Hertogenbosch; 2015-09-01; Cimtrode; Carbide; 200.133.747/01
Decision by national courts in the field of European Union law — ECLI:NL:GHSHE:2015:3396
Date: 2015-09-01
Subject matter: Brussels Convention of 27 September 1968
Origin: Netherlands

82015NL0901(52)_ENG_SUMJURE
JURE summary
JURE summary
Cimtrode, a Dutch producer of graphite electrodes, and Carbide, an Austrian producer of electrical conductors, had a trade relationship based on a non-written agreement. The goods used to be delivered to different locations: Austria, Germany and in a small number of cases they were collected directly from Carbide’s premises. In the written confirmations of orders, Carbide used to refer to Metaalunie conditions determining the jurisdiction of the Dutch courts. Furthermore, Carbide marked its invoices with an “ex-works” clause.
Several invoices remained unpaid by Cimtrode.
Carbide sued Cimtrode at the rechtbank (district court) for payment of the debt. Cimtrode raised an objection concerning a lack of jurisdiction. The rechtbank held that it had jurisdiction to hear the claim because of Article 5(1)(a) and (b) of the Brussels I Regulation (1). Determination of “place where the goods were delivered or should have been delivered” in connection with the “ex-works” condition was held sufficient to establish a jurisdiction. Cimtrode contested the fact that they had an agreement with an “ex-works” clause and conversely alleged it was agreed that Cimtrode would designate the place of each delivery.
The Hof (Court of Appeal) confirmed that the Brussels I Regulation was rightly taken into consideration in this case. As already correctly applied by the rechtbank, the reference to Metaalunie conditions could not be regarded as an agreement conferring jurisdiction in the sense of Article 23(1) of the Brussels I Regulation. However, on the contrary to the rechtbank, the Hof maintains, that in the case of verbal agreement, the use of an “ex-works” clause only contained in invoices is insufficient, as invoices are issued and sent only after the conclusion of the (verbal) agreement has been made. Moreover, it was proven, that some of Cimtrode’s order forms indicated Austria as the place of delivery. Therefore, on the basis of Article 5(1)(a) and (b) of the Brussels I Regulation, it should be considered that the place of delivery is Austria.
Application of the general rule set in Article 2 of the Brussels I Regulation, according which “persons domiciled in a Member State shall, whatever their nationality, be sued in the courts of that Member State”, leads to the conclusion that the Dutch courts do not have jurisdiction.
The Hof granted the appeal and ordered the appealed judgment to be annulled.
(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.