Gerechtshof’s-Hertogenbosch; 2021-02-23; Retour; 200.262.764
Decision by national courts in the field of European Union law — ECLI:NL:GHSHE:2021:506
Date: 2021-02-23
Subject matter: Judicial cooperation in civil matters
Origin: Netherlands

82021NL0223(51)_ENG_SUMJURE
JURE summary
JURE summary
ECLI:NL:GHSHE:2021:506, Gerechtshof ’s-Hertogenbosch (hereinafter ‘the Court of Appeal’), 23 February 2021
The Brussels I Regulation (recast) (1)
The plaintiff sells children’s clothes under the label ‘Retour’. On 25 April 2016, it concluded an agency contract with the defendant. Under this contract, the defendant was supposed to sell the plaintiff’s clothing on the German market for three years as a German agent. During the agreed 3-year period, the contract was terminated and expired on 30 November 2018.
The main subject matter of the plaintiff’s claim is the outstanding sum of the final invoice that the plaintiff delivered to the defendant.
In the contested judgment, the rechtbank Oost-Brabant (hereinafter ‘the Court of First Instance’) declared a lack of jurisdiction to hear the claim.
According to the Court of Appeal, the question of jurisdiction of the Dutch court must be assessed under the Brussels I Regulation (recast). The general principle stipulated by Article 4(1) of the Brussels I Regulation (recast) suggests that a German court has jurisdiction to hear the present claim. Article 7(1) of the Regulation leads to the same conclusion because the services under the agency contract were provided in Germany. However, Article 25 of the Brussels I Regulation (recast) offers the option to conclude an agreement conferring jurisdiction. According to this provision, ‘if the parties, regardless of their domicile, have agreed that a court or the courts of a Member State are to have jurisdiction to settle any disputes which have arisen or which may arise in connection with a particular legal relationship, that court or those courts shall have jurisdiction, unless the agreement is null and void as to its substantive validity under the law of that Member State’. It is also important to note that according to Article 25(5) of the Brussels I Regulation (recast), ‘an agreement conferring jurisdiction which forms part of a contract shall be treated as an agreement independent of the other terms of the contract. The validity of the agreement conferring jurisdiction cannot be contested solely on the ground that the contract is not valid.’
The plaintiff relied on an agreement conferring jurisdiction, which the parties allegedly made when concluding the agency contract, and according to which they designated the court of the plaintiff’s place of business as having jurisdiction.
4.13 The conclusion is that the contract, signed by the defendant in 2016 and submitted by the plaintiff in these proceedings, reflects the consensus of wills between the parties. Part of that contract is Article 19, which contains the choice of law and the choice of forum. Therefore, the requirements laid down by Article 25 of the Brussels I Regulation (recast) for agreements conferring jurisdiction have been met.
4.14 The court designated by the parties in Article 19 of the agency contract is the court of the plaintiff’s place of business. Such a place of business is in [anonymised]. Pursuant to Article 108(1) of the Rv. (2) in conjunction with the introductory phrase of Article 93 and Article 93(c) of the Rv, the [Court of First Instance] is a Dutch court having ‘relatieve bevoegdheid‘ (jurisdiction ratione loci) to hear the plaintiff’s claim. Therefore, the Court of First Instance erroneously declared the lack of its jurisdiction. The appeal is granted.
(1) Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
(2) Wetboek van Burgerlijke Rechtsvordering (Code of Civil Procedure).