Hoge Raad, arrest van 03/05/2002 Spectra International PLC / Ziegler Nederland BV
Decision by national courts in the field of European Union law — ECLI:NL:HR:2002:AD9604
Date: 2002-05-03
Subject matter: Brussels Convention of 27 September 1968
Origin: Netherlands

82002NL0503(03)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The defendant, an import dispatcher domiciled in the Netherlands, issued customs declarations for a cargo of television appliances meant for the claimant domiciled in England. After customs determined that individual pieces from third party countries were assimilated into the appliances, the defendant retained the cargo. The claimant demanded compensation before the Rechtbank of Rotterdam (NL). The defendant lodged a counterclaim and also demanded compensation. The claimant challenged jurisdiction over the counterclaim. The Rechtbank approved its jurisdiction under Article 5(1) and (3) Brussels I Regulation. After an unsuccessful appeal, the claimant lodged a further appeal before the Hoge Raad (NL). The claimant contested a contractual breach of duty. The breach of extra-contractual obligations may not establish jurisdiction over a delict if this breach stands in connection to a contractual breach.
The Hoge Raad (NL) determines that the defendant bases its claim on the breach of a contractual duty of disclosure. Whether such breach actually exists is irrelevant for the determination of jurisdiction. The place of performance under Article 5(1) is to be determined according to substantive law. According to Dutch law, disclosure must be issued at the place at which the disclosure must be received by the addressee, in this case at the defendant’s domicile. The Hoge Raad (NL) leaves unanswered, whether breach of an extra-contractual duty that stands in connection with a breach of contract represents a tortious act under Article 5(3) if interpreted autonomously. In any case, jurisdiction under Article 5(1) exists. According to the ECJ (27.09.1988, 189/87, Kalfelis/Bank Schröder), jurisdiction under Article 5(1) does not automatically establish jurisdiction under Article 5(3). If both jurisdictions are however cumulatively present, no concerns arise. Der Hoge Raad dismisses the appeal.