ECLI:NL:RBAMS:2023:4109, Rechtbank Amsterdam, 05-07-2023, NCC 23/010
Rechtbank Amsterdam — Uitspraak 
Datum: 2023-07-05 00:00:00.000000
Rechtsgebied: Civiel recht

Samenvatting: Since 1978, the (predecessors of) the parties in these proceedings (Duomed The Netherlands B.V. and Fujifilm Europe B.V., both domiciled in the Netherlands) were in a distribution relationship regarding endoscopy products. Since 2013, the distribution agreements existed of consecutive fixed-term contracts which expire by virtue of law. On 8 March 2023, Fujifilm informed Duomed of its intention not to enter into a new distribution agreement, which would result in the expiration per 31 March 2023. Duomed seeks in these summary proceedings an order for Fujifilm to continue the distribution relationship for another 18 months. 
        The Court does not rule on the dispute between the parties as to whether the Supreme Court rulings on the termination of long-term contractual relationships apply to consecutive fixed-term contracts  which expire by virtue of law. Regardless of whether there is or is not a long-term relationship, a party to a contract must let its conduct be determined also by the legitimate interests of the other party (HR 19-10-2007, ECLI:NL:HR:2007:BA7024). The Court finds that Fujifilm did not. The circumstances of this case merit the existence of an obligation on the side of Fujifilm to unequivocally and timely warn Duomed, if Fujifilm would not want to conclude a new agreement after the expiration of the Distribution Agreement 2021. Fujifilm failed to do so. This breach is to be remedied in these summary proceedings by obligating Fujifilm to continue the distribution agreement for a period to be determined by the Court, which is set at six months after the judgment. Most of Duomed’s claims are awarded. The document production claims submitted by both parties pursuant to Article 843a Dutch Code of Civil Procedure were denied due to a lack of legitimate interest in obtaining these documents.
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        Sinds 1978 hebben (de rechtsvoorgangers van) partijen in deze procedure (Duomed The Netherlands B.V. en Fujifilm Europe B.V.) een distributierelatie met betrekking tot endoscopie-producten. Met ingang van 2013 bestonden de distributieovereenkomsten uit opeenvolgende contracten voor bepaalde tijd die van rechtswege vervielen. Op 8 maart 2023 kondigde Fujifilm aan dat zij geen nieuwe distributieovereenkomst zou afsluiten, hetgeen zou betekenen dat de overeenkomst zou vervallen per 31 maart 2023. In dit kort geding vordert Duomed dat Fujifilm wordt bevolen om de distributierelatie voort te zetten voor een periode van 18 maanden.
        De voorzieningenrechter geeft geen beslissing op het geschil tussen partijen of de Hoge Raad-jurisprudentie over opzegging van duurovereenkomsten van toepassing is op opvolgende contracten voor bepaalde termijn die van rechtswege vervallen. Zowel in gevallen van distributierelaties van onbepaalde als bepaalde tijd, moet een partij zijn gedrag mede laten bepalen door de gerechtvaardigde belangen van de wederpartij (HR 19-10-2007, ECLI:NL:HR:2007:BA7024). Fujifilm heeft dat niet gedaan. In deze zaak is het gerechtvaardigd om een verplichting aan te nemen aan de zijde van Fujifilm om Duomed ondubbelzinnig en tijdig te waarschuwen, als zij geen nieuwe distributieovereenkomst zou willen sluiten na het vervallen van de distributieovereenkomst uit 2021. Fujifilm heeft dat niet gedaan. Deze schending van de waarschuwingsplicht moet in het kader van dit kort geding geheeld worden door Fujifilm te verplichten om de distributieovereenkomst 2021 voort te zetten voor een periode van 6 maanden met ingang van dit vonnis. Het merendeel van de vorderingen van Duomed worden toegewezen. De door beide partijen ingediende 843a-vorderingen zijn afgewezen wegens een gebrek aan een rechtmatig belang.

judgment
    AMSTERDAM DISTRICT COURT
    
    
      Netherlands Commercial Court 
      NCC District Court – Court in Summary Proceedings
    
    
    
      Case number: NCC 23/010 (C/13/734045)
    
    
    
      
        Judgment
      
    
    
    5 July 2023
    
    
      
        Claimant, and defendant in the counterclaim: 
      
        DUOMED THE NETHERLANDS B.V., 
      Veenendaal (the Netherlands),
      represented by R. van Tricht, M.A. Leijten and F.A. Heurman, lawyers
    
    
    
      
        Defendant, and claimant in the counterclaim:
      
      
        FUJIFILM EUROPE B.V.
        ,
      
      Tilburg (the Netherlands)
      represented by M.R. Ruygvoorn, L.M.H. Koops and J. Wareman, lawyers.
    
    
    
      The parties are referred to below as Duomed and Fujifilm respectively.
    
    
    
      Counsel are members of the Netherlands Bar Association. The term “lawyer” above has the meaning as defined in Article 3.1.1 Netherlands Commercial Court Rules (NCCR).
    
    
  
  
    
      1Procedural history
    On 16 May 2023, the Court granted Duomed permission to serve the summons with notice to appear at a court hearing on the merits of the case, to be held on 5 June 2023. The writ of summons was subsequently served on 22 May 2023.
    
    
      On 1 June 2023, Fujifilm submitted its statement of defence.
    
    
    
      A courtroom hearing was held on 5 June 2023 in the Dutch language in accordance with the parties’ wishes and Article 2.1.1 of the NCC Rules of Procedure. One attendee joined online.
    
    
    
      At the hearing, the parties requested a stay of the proceedings in order for them to continue their discussions which may result in a settlement agreement. 
    
    
    
      On 21 June 2023, Duomed notified the Court that the parties had not reached a settlement agreement and therefore requested the Court to render its judgment.
    
    
    
      Judgment was set for today.
    
    
  
  
    
      2Facts – background
    
      2.1.
      Duomed is a distributor of medical solutions and clinical services for the medical field in the Netherlands. Its portfolio of products and services covers surgical and interventional machines, hospital solutions and endoscopy. Duomed's fields of action target hospitals, clinics, private practices, home care and pharmacies. Duomed is the legal successor of FMH Medical B.V., which is the original contracting party of (the legal predecessor of) Fujifilm.
      
    
    
      2.2.
      Fujifilm is involved in a wide range of businesses, including marketing and distributing of Fujifilm medical devices.
      
    
    
      2.3.
      In 1978, Fujinon (Europe) GmbH (“Fujinon Europe”) started a distribution relationship with the legal predecessor of Duomed, Fujinon Medical Holland B.V. (“Fujinon Holland”). At first, the distribution relationship only concerned endoscopy products (“Capital Products”). In 2000, the parties also agreed on the distribution of endoscopy device products (“Device Products”). The Capital Products and Device Products will be referred to below as “Products”.
      
    
    
      2.4.
      In 2011, Fujinon Europe was merged into the German company Fujifilm Europe GmbH. The distributorship agreements for the Netherlands were then taken over by Fujifilm. Up until 2013 the parties were working with contracts that would automatically renew for an indefinite period, subject to termination by the other party. Since 2013, the parties only concluded agreements with a fixed-term (two years).
      
    
    
      2.5.
      
        The most recent agreement is the Distribution Agreement 2021 (also referred to below as ‘the distribution agreement’). This distribution agreement was concluded on 20 June 2022 and became effective retroactively as of 1 April 2021. The relevant provisions are the following:
        “ (…)
        
          1. Definitions
        
        When used herein, the following terms have the meanings set forth below, other terms being defined throughout the body of this Agreement:
      
    
    
      1.1.
      The term “Product” means any Product listed in Schedule 1.1 attached hereto (including the spare parts of such Product used for repair and replacement services as set forth in Article 14 below) that bears one or more FUJIFILM Trademarks or Non- FUJIFILM Trademarks. (…)
    
    
      1.2.
      The term “Capital Products” means products listed in “A. Capital Products by category” of Schedule 1.1.
    
    
      1.3.
      The term "Device Products” means products listed in “B. Device Products by category” of Schedule 1.1.
    
    
      1.4.
      
        The term "Territory" means the Netherlands.
        (…)
        
          2. Distributorship
        
      
    
    
      2.1.
      
        FUJIFILM hereby grants to the Distributor the right to sell, market or otherwise distribute the Products in the Territory, subject to the terms and conditions hereinafter set forth. Subject to the last sentence of this Article 2.1 the Distributor’s right pursuant to this Article 2.1 shall be exclusive and, in consideration of the exclusive nature of the right FUJIFILM has granted, during the term of this Agreement FUJIFILM will not appoint any other person or entity to act as a distributor of the Products in the Territory nor shall FUJIFILM, subject to Article 2.3 hereof, distribute the Products itself or through its Affiliates. Regarding any Products that do not bear a FUJIFILM Trademark, Distributor’s right pursuant to this Agreement is non-exclusive, unless FUJIFILM and/or its Affiliates have exclusive distribution rights for such Products for the Territory.
        (…)
      
    
    
      2.4.
      
        In case a Customer in the Territory requests the Products to be supplied directly by FUJIFILM, FUJIFILM will notify the Distributor of such request from the Customer and discuss with the Distributor how to meet such Customer request. (…)
        
          22. Confidentiality
        
      
    
    
      22.1.
      Both during and during a period of four (4) years after the termination or expiration of this Agreement, the receiving Party shall keep strictly confidential any and all Confidential Information that is disclosed to it or which it obtains during the course of performance of this Agreement, and shall not disclose the same to any third party. The receiving Party shall take reasonable security precautions to protect Confidential Information against unauthorized disclosure. A receiving Party may disclose Confidential Information only to its directors, officers, employees, representatives and sub-distributors who have a legitimate need to know for the performance of this Agreement.
    
    
      22.2.
      The receiving Party shall cause its directors, officers, employees, representatives and sub-distributors to keep all Confidential Information strictly confidential and not to disclose the same to any third party.
    
    
      22.3.
      
        A receiving Party shall not use any Confidential Information for any purpose other than for the performance of this Agreement.
        (…)
        
          23. Term
        
      
    
    
      23.1.
      The term of this Agreement shall be from the Effective Date until 31 March 2023. It is expressly agreed and understood that unless this Agreement is terminated earlier, this Agreement shall automatically expire and cease to be in effect upon expiry of the term hereof. FUJIFILM agree to start negotiation on a new agreement no later than three (3) months prior to the expiration date of this Agreement, but neither Party shall be entitled to a new agreement.
    
    
      23.2.
      
        Notwithstanding the exclusive distributorship granted to the Distributor under Article 2.1 above, FUJIFILM may commence selling the Products in the Territory, directly or indirectly through its Affiliate or designee, in order to secure continuous and stable supply and services of the Products to the marketplace in the Territory during the transition to a new distributor, after giving a written notice - at least three (3) months before the end date - of its intention not to renew this Agreement.
        (…)
        
          25. Surviving Provisions
        
        The provisions of Articles 5.2, 16, 17, 18, 19.6, 19.7, 20.1, 20.2, 21, 22, 24, 25, 26, 27, 29, 30, 32, 34, 35, 36,37, 38 39 and 40 shall survive any termination or expiration of this Agreement.
        
          26. Rights and Obligations upon Termination and Expiration
        
      
    
    
      26.1.
      Termination or expiration of this Agreement will not operate to release either Party from any obligation which arose before the effective date of termination or expiration under this Agreement or under any individual purchase contract entered into between them or which is stated to survive such expiration or termination.
    
    
      26.2.
      Upon termination or expiration of this Agreement, all the rights granted to the Distributor hereunder, including but not limited to the distributorship granted in Article 2.1, shall lapse immediately, and the Distributor shall discontinue and cause its sub-distributors to discontinue all selling, distributing, marketing or any other activities with respect to the Products and using of any of Authorized Trademarks.
    
    
      26.3.
      Unless otherwise agreed by FUJIFILM in writing, the Distributor shall not, after the date of termination or expiration of this Agreement, sell or distribute any of the Products that remain as the Distributor’s inventory as of the date of termination or expiration of this Agreement, but it shall deliver such Products to FUJIFILM if FUJIFILM elects to exercise its right to purchase according to Article 26.5 below or otherwise dispose of them in accordance with FUJIFILM's instructions.
    
    
      26.4.
      If the Distributor is awarded a public tender or if the Distributor is bound by a contractual obligation to a third party to deliver Products after the date on which the Agreement is terminated or expired, FUJIFILM shall be required continue to deliver to the Distributor such Products as necessary to comply with the tender or contractual obligations until the end of said obligations if the Distributor has disclosed to FUJIFILM sufficient documents setting out its continuous supply obligations against third party prior to termination or expiration of this Agreement and the Parties have agreed to continue supply of the Products for that purpose.
    
    
      26.5.
      If FUJIFILM decides not to enter into a new agreement after the negotiation with the Distributor on a new agreement in accordance with the Article 23.1, FUJIFILM shall purchase and/or have its designee purchase all of the Products that remain as the Distributor’s inventory as of the date of expiration of this Agreement, are in re-saleable conditions or essentially in the same conditions as they were delivered to the Distributor and have the remaining shelf life more than twelve (12) months. The Distributor shall deliver them to FUJIFILM or its designee, and FUJIFILM or its designee shall pay the Distributor the landed cost that the Distributor paid for such Product.
    
    
      26.6.
      If FUJIFILM decides not to enter into a new agreement after the negotiation with the Distributor on a new agreement in accordance with the Article 23.1, FUJIFILM shall purchase from the Distributor all of the demo systems that are well maintained and in good working order. The Distributor shall deliver them to FUJIFILM or its designee, and FUJIFILM or its designee shall pay the Distributor the amount of book value of such demo/loaner systems at the time of delivery to FUJIFILM or its designee, assuming the straight-line depreciation over a period of sixty (60) months.
    
    
      26.7.
      
        In no event will FUJIFILM or its designee pay the landed cost or the book value amount unless and until the Products or demo/loaner systems are delivered to FUJIFILM or its designee.
        (…)
        
          34. Jurisdiction
        
        All disputes arising out of or in connection with this agreement will be resolved by the Amsterdam District Court following proceedings in English before the Chamber for International Commercial Matters (“Netherlands Commercial Court” or "NCC”), to the exclusion of the jurisdiction of any other courts. An action for interim measures, including protective measures, available under Dutch law may be brought in the NCC's Court in Summary Proceedings (“CSP”) in proceedings in English. Any appeals against NCC or CSP judgments will be submitted to the Amsterdam Court of Appeal’s Chamber for International Commercial Matters.
        
          35. Governing Law
        
        Unless otherwise agreed upon in writing between the Parties, this Agreement shall be governed by and construed in accordance with the laws of the Netherlands, excluding its conflict of law rules. The United Nations Convention on Contracts for the International Sale of Goods (Vienna Convention) shall not apply. The Parties acknowledge and agree that each has entered into this Agreement in the mutual expectation that its terms and conditions will be governed by and interpreted in accordance with the substantive laws of the Netherlands. Therefore, the Parties waive any right which either may have to challenge the efficacy of this provision or to contend that the laws of any other jurisdiction should govern the interpretation of this Agreement because such other jurisdiction has more significant contacts with, or a greater interest in, the matter in dispute than does the Netherlands. (…)”
      
      
    
    
      2.6.
      
        On 19 December 2023, Fujifilm sent an e-mail to Duomed (in the Dutch language, the English translation made by the Court is below) which reads – insofar as relevant – as follows:
        “(…) The current distribution agreement ends on 31 March 2023. As indicated in my e-mail to [colleague], we send you this e-mail to start talks on the next steps. However, we are very sceptical on the basis of these talks. There does not seem to be a plan, there is no significant increase of the market share in endoscopes and no active sale of fujifilm devices, but – instead – a downward spiral, especially when it concerns the FFMW portfolio. If Duomed NL is interested in a new distribution agreement, we expect a solid plan (with guarantees) as a minimal basis for these talks. (…)”
      
      
    
    
      2.7.
      
        During a meeting on 8 March 2023 Fujifilm informed Duomed of its intention not to enter into a new distribution agreement. Two days later, Fujifilm confirmed its intention via e-mail by attaching the discontinuation letter dated 9 March 2023. This letter reads – insofar as relevant – as follows:
        “(…)
        As mentioned in the meeting with you in Ratingen on the 8th of March 2023, we truly regret to inform you that we have decided not to enter into a new agreement with Duomed NL.
        Our decision not to continue the business cooperation with Duomed NL is due to the inability to align our sales & marketing strategy for the Netherlands with that of Duomed NL. We have a need for a sales channel that possesses the attributes that will fundamentally underpin our strategic intent in this region.
        According to Articles 26.2 and 26.3 of the Agreement, please note in particular that Duomed NL shall not sell, distribute or market any of Fujifilm's products after the expiry date of the Agreement. However, we are happy to discuss with you how to close our cooperation smoothly in a to be scheduled follow up meeting. You have asked for time to evaluate the transition, which we do understand and we proposed to have a next meeting (call) no later than the 17th of March 2023.
        We would like to point out that Fujifilm is not obliged to offer any form of transition, but out of respect of our partnership, would like to offer this opportunity.
        Concerning our activities in the Netherlands, we would like to state the following: In order to secure continuous and stable supply and services of the Fujifilm portfolio to the market, we might have to start marketing and communication activities before the expiration date of the Agreement on 31 March 2023.
        We will of course fulfil our obligations arising before the expiration date and would expect you to do the same; any supplies will be executed by our affiliate FUJIFILM Healthcare Nederland B.V. as per article 7.1 of the Agreement. Transaction arrangements after the 31st March are to be understood as single transaction arrangements and not to be misconstrued as a continuation of cooperation or renewal of the Agreement. (…)”
      
      
    
    
      2.8.
      
        On 1 April 2023, Fujifilm sent this newsletter to its customers (in Dutch, English translation made by the Court is below):
        “Direct endoscopy representation Fujifilm in the Netherlands
        Dear client,
        With this newsletter we inform you about the change within Fujifilm Healthcare Nederland B.V. with regards to endoscopic devices. Effective 1 April 2023, the collaboration with Duomed in the Netherlands has ended. Fujifilm will now be operating directly on the Dutch market. 
        It is our aim to continue the excellent service. Fujifilm representatives will contact you shortly to guarantee a smooth transition.
        We are looking forward to cooperating with you. If you have any questions in view of this letter, you may contact [name], National Sales Manager Netherlands.”
      
      
      
    
  
  
    
      3Claim and counterclaim
    Claim
    
    
      3.1.
      Duomed requests the Court to:
      
        
          prohibit Fujifilm to market and sell Capital Products in The Netherlands, directly or indirectly through any affiliate or designee to Duomed's existing customers for 18 months after the date of the CPS's judgment;
        
        
          order Fujifilm to cancel or reject any orders for Capital Products (other than orders placed by Duomed) in the Netherlands that Fujifilm accepted or received from Duomed's existing customers, directly or indirectly through any affiliate or designee between 1 April 2023 and the date of the CSP's judgment;
        
        
          order Fujifilm to send a newsletter to all the current and potential customers for the Capital Products that it has approached since 1 April 2023, including the customers that received its newsletter of 1 April 2023, informing the customers of the orders given by the CSP as referred to above under a. and b.,
        
        
          order Fujifilm to continue the supply of the Products for Duomed's existing customers in accordance with the terms of the Distribution Agreement 2021 and the parties' practice, including the granting of a discount of 20% on the prices in the price lists on any purchase order placed by Duomed with Fujifilm;
        
        
          order Fujifilm to accept all purchase orders from Duomed for existing customers that satisfy the conditions of the Distribution Agreement 2021;
        
        
          order Fujifilm to refrain from any actions that hinder Duomed in performing its ongoing contractual obligations towards its existing customers for the Products;
        
        
          order Fujifilm to refrain from using Confidential Information (as meant in Article 22 of the distribution agreement) for the purpose of approaching or targeting Duomed's existing customers;
        
        
          order Fujifilm to provide Duomed with a copy of, or access to, the Documents as mentioned in section 5.2 of the writ of summons;
        
        
          order Fujifilm to pay the costs of the proceedings, to be increased by statutory interest;
        
        
          subject the prohibition and orders under a. through i. to incremental penalty payments, if Fujifilm fails to comply.
        
      
      
      
        
          Counterclaim
        
      
      
    
    
      3.2.
      Fujifilm requests the Court to order Duomed:
      
        
          to refrain from performing any selling, marketing or distribution activities related to FUJIFILM Products as defined in the Distribution Agreement 2021 and ii) use of the FUJIFILM Trademark as defined in the Distribution Agreement 2021, subject to a penalty payment; 
        
        
          to provide FUJIFILM with a copy of or access to, the documents as mentioned under paragraph 5.6 of the statement of defence, subject to a penalty payment;
        
        
          to pay to FUJIFILM the costs of the proceedings, to be increased by statutory interest.
        
      
      
    
  
  
    
      4Discussion
    Jurisdiction and applicable law 
    
    
      4.1.
      The Amsterdam District Court has personal jurisdiction to deal with this case, as Fujifilm did not raise any defence on this point (Article 110 of the Dutch Code of Civil Procedure (DCCP)). The parties chose the Netherlands Commercial Court (NCC) and the Court in Summary Proceedings (CSP) as the appropriate chambers to deal with all disputes arising from their distribution agreement (Article 34 of the Distribution Agreement 2021). This case is between two companies domiciled in the Netherlands, but the internationality requirement (Article 32a DCCP) is fulfilled, as Fujifilm is a part of an international group of companies, as is Duomed. Accordingly, the NCC CSP is the appropriate chamber to deal with this dispute.
      
    
    
      4.2.
      The Distribution Agreement 2021 provides that it shall be governed by and construed in accordance with the laws of the Netherlands (Article 35). Therefore, the Court will apply Dutch law.
      
      
        
          On the claim
        
      
      
    
    
      4.3.
      The main dispute between the parties concerns the question whether the Supreme Court rulings on the termination of long-term contractual relationships apply to consecutive fixed-term contracts - as concluded by the parties since 2013 - which expire by virtue of law. However, the Court need not make a decision on this issue. In these summary proceedings Duomed does not seek continuation of the relationship for an indefinite period of time, but it essentially requests a reasonable time period to ensure continuity and a smooth transition for its existing customers and to mitigate the impact of the end of the distribution relationship with Fujifilm. Regardless of whether there is or is not a long-term relationship, a party to a contract must let its conduct be determined also by the legitimate interests of the other party (HR 19-10-2007, ECLI:NL:HR:2007:BA7024). The interests relied upon by Duomed are legitimate interests within the meaning of this Supreme Court ruling.
      
    
    
      4.4.
      Accordingly, the Court need only determine whether these interests were sufficiently taken into account by Fujifilm when it chose not to enter into a new contract and let the Distribution Agreement 2021 lapse on 31 March 2023. The Court – on a summary enquiry – finds that Fujifilm did not. This decision is based on the following facts and circumstances.
       The distribution relationship dates back from 1978. The relationship was governed by a series of consecutive distribution agreements which were automatically renewed. In 2013, when the distribution relationship for the Netherlands was continued by Fujifilm as successor of Fujinon Europe, Fujifilm changed the agreements into fixed (two year)-term agreements which were not automatically renewed. Subsequently, four fixed-term contracts were concluded: 
      
        o the Distribution Agreement concluded on 15 May 2013, effective as of 15 February 2013,
        o the Distribution Agreement concluded on 17 November 2016, effective as of 1 April 2016,
        o the Distribution Agreement concluded on 19 February 2019, effective as of 1 April 2018,
        o the Distribution Agreement concluded on 20 June 2022, effective as of 1 April 2021,
      
      
        
          What this shows is that whereas the contracts after 2013 lapsed automatically at a certain predetermined date, the parties generally did not conclude a new agreement until months after the expiration date. In consequence of this, there was no reason for Duomed to have to anticipate that any agreement would lapse instantly by virtue of law. 
        
        
          However, Duomed also knew - on the basis of a express stipulation to that effect in the fixed term contracts - that “neither party shall be entitled to a new agreement”. This means that Duomed could have known that there could arise a time when Fujifilm did not want to enter into a new agreement. It could not simply rely on the long-lasting relationship, as this relationship was significantly changed by the fixed-term contracts concluded after 2013.
        
      
      
    
    
      4.5.
      These circumstances merit - in light of Duomed’s legitimate interests - the existence of an obligation on the side of Fujifilm to unequivocally and timely warn Duomed, if Fujifilm would not want to conclude a new agreement after the expiration of the Distribution Agreement 2021. Fujifilm failed to do so.
      
        
          In its e-mail dated 19 December 2022 (para. 2.6), Fujifilm conveyed to Duomed its discontent with Duomed not meeting its targets and referred to the expiration date. However, it also indicated that it wished to initiate talks on the next steps. This e-mail does not qualify as a warning that Fujifilm did not want to conclude a new agreement. Discontent with a distributor in itself does not preclude conducting negotiations on a new distribution agreement.
        
        
          Fujifilm argues that at the very least Duomed should have been aware of Fujifilm’s intentions after the phone call with Duomed employees on 1 February 2023. [Fujifilm’s representative] is alleged to have mentioned explicitly that it was highly unlikely “that we could continue due to ongoing concerns”. Duomed disputes the contents of this phone call. But even if Fujifilm made this statement to Duomed on 1 February 2023, it does not constitute an unequivocal warning, nor a timely warning, that no new agreement would be concluded. 
        
        
          During a meeting on 8 March 2023, only 3 weeks prior to the expiration date, Fujifilm expressly stated that its intention was not to renew the Distribution Agreement 2021. This is too late for Duomed to ensure a smooth transition for its existing customers and to mitigate the impact of the end of the distribution relationship. In its e-mail dated 10 March 2023, which included the letter confirming its intentions (para. 2.7), Fujifilm did make a ‘soft landing’ proposal, but Duomed could not be expected to respond to this proposal in a situation where it was blindsided by the abrupt end of the distribution relationship.
        
      
      
    
    
      4.6.
      Fujifilm showed further disregard for Duomed's interests by unilaterally releasing a newsletter on 1 April 2023 to its clients (para. 2.8), including some of Duomed’s customers, informing them that the cooperation with Duomed had been terminated and Fujifilm would from that date onwards operate directly on the Dutch market.
      
    
    
      4.7.
      Fujifilm’s failure to provide an unequivocal and timely warning to Duomed of its intention not to renew the distribution agreement constitutes a breach of Fujifilm’s duty to let its conduct be determined also by the legitimate interests of Duomed. This breach is to be remedied in these summary proceedings by obligating Fujifilm to continue the distribution agreement for a period to be determined by the Court. This period must be long enough to facilitate the smooth transition of Duomed’s customers, but not too long as to negate the fixed-term nature of the distribution relationship. The Court also takes into account that Duomed is already is in the process of starting collaboration with a new endoscope supplier. The Court rules that a period of six months, starting the day after this judgment is given, should be enough time, taking into consideration the limited duration of the fixed-term contracts and the average time after the expiration within which a new contract generally was concluded. This means that Fujifilm must continue to perform its obligations under the Distribution Agreement 2021, as if the agreement did not expire on 31 March 2023, but will now expire on 5 January 2024. The issue raised by Fujifilm on which provisions survive and do not survive the expiration is therefore irrelevant at this time and for the coming six months.
      
    
    
      4.8.
      The Court will award Duomed’s claim to prohibit Fujifilm to market and sell Capital Products in the Netherlands (claim a) for the duration of six months. The Court notes that Article 2.4 of the Distribution Agreement 2021 provides that under certain conditions Fujifilm at present is entitled to sell directly in the distributor’s territory. This provision will also be in effect during the coming six months. Therefore, the Court will exclude any supplies made by Fujifilm in accordance with this provision. 
      
    
    
      4.9.
      Duomed’s claim to order Fujifilm to cancel or reject orders for Capital Products received between 1 April 2023 and the date of this judgment (claim b) will be awarded under the same exception referred to above in 4.8.
      
    
    
      4.10.
      By unilaterally sending the newsletter dated 1 April 2023 Fujifilm, in hindsight, did not convey to its customers the correct message. The distribution agreement did not end on 1 April 2023, but will end six months after this judgment. This message is therefore to be rectified by Fujifilm (claim c).
      
    
    
      4.11.
      The continuation of the distribution agreement for another six months means that Fujifilm is obligated to accept purchase orders from Duomed for existing customers that satisfy the conditions of the Distribution Agreement 2021 (claim e) and that it must continue the supply of products in accordance with this agreement (claim d). Therefore, the prices of the products are to remain the same, and any discount Fujifilm was accustomed to give to Duomed under this agreement, is to be granted in the six months to come as well.
      
    
    
      4.12.
      Claim (f) entails ordering Fujifilm to refrain from any actions that hinder Duomed in performing its ongoing contractual obligations towards its existing customers for the Products. This claim is worded in too broad terms to be awarded. Awarding this claim would most likely result in enforcement disputes. It will therefore be dismissed for practical purposes.
      
    
    
      4.13.
      Under Article 22.3 of the Distribution Agreement 2021 a receiving Party shall not use any Confidential Information for any purpose other than for the performance of this Agreement.  For the Court to award a claim for compliance with this provision and to impose a penalty in case of non-compliance (claim g), it would be necessary for Duomed to show - on a summary basis - that Fujifilm violated its obligations under this provision or will violate its obligations in the future. Duomed failed to do so. The fact that Fujifilm hired two of Duomed’s employees to engage in the same activities as before, is insufficient proof of this violation.
      
    
    
      4.14.
      Duomed further claims (claim h) that Fujifilm should be ordered to provide Duomed with a copy of certain documents under Article 843a DCCP. The requested documents should – in Duomed’s view – enable it to obtain insight into when and how Fujifilm decided to (i) change its strategy and operate directly in the Dutch market, (ii) discontinue the contractual relationship with Duomed and (iii) hire Duomed's now former employees.
      
    
    
      4.15.
      The Court finds that Duomed did not sufficiently substantiate why it has a legitimate interest in obtaining these documents, as required by Article 843a DCCP. The Court does not see how the timing of Fujifilm’s decision-making process is relevant in determining the parties’ rights and obligations under the agreement, including the right to compensation. The amount of damage inflicted upon Duomed is not dependent on Fujifilm acting intentionally or not. What matters is at what time Fujifilm communicated its intention towards Duomed, and this is not what the documents will reveal. The timing of the communication of the intention is already a matter of record. This claim will therefore be denied.
      
    
    
      4.16.
      Duomed seeks a penalty in case of non-compliance with the judgment ranging from EUR 25,000 per day to EUR 250,000 for each violation. This is not a reasonable amount. The Court reduces the amount to EUR 5,000 per day, with a maximum of EUR 1,500,000.
      
      
      
      
        
          On the counterclaim
        
      
      
    
    
      4.17.
      The Court will dismiss the 843a-claim made by Fujifilm for the same reasons as Duomed’s. The Courts fails to see the relevance of the timing of Duomed starting its collaboration with a direct competitor of Fujifilm (Sonoscape). Even if Duomed did start this collaboration on 1 October 2022, as Fujifilm alleges, this does not constitute a legitimate interest in obtaining documents regarding this collaboration. Given the fixed-term nature of the distribution agreement and the impending expiration date, Duomed was anyhow entitled to explore options of collaborating with other suppliers, as was Fujifilm to explore options of direct selling its product on the distributor’s market. The fact that Duomed invited its employees for a training on Sonoscape endoscopes on 2 June 2023, indicates that the collaboration is in its starting phase and therefore not in breach of the distribution agreement (which is also not what Fujifilm alleges) nor generating any profits which would be relevant in calculating the damage suffered by Duomed as a result of Fujifilm’s breach of its duty to provide an unequivocal and timely warning. This counterclaim will therefore be denied.
      
    
    
      4.18.
      The Court’s decision on Duomed’s claims, resulting in Duomed being entitled to act as distributor for another six months, implies that the Court will not order Duomed to refrain from any selling, marketing or distribution activities nor from using Fujifilm’s trademark in doing so. All counterclaims will therefore be dismissed.
      
      
        
          Costs
        
      
      
    
    
      4.19.
      Fujifilm is unsuccessful in the proceedings on both the claim as the counterclaim. Therefore, it will be ordered to pay the costs incurred by Duomed, to be estimated on the basis of the rates applicable in NCC CSP cases.
      
      
    
  
  
    
      5Conclusion and order
    THE COURT IN SUMMARY PROCEEDINGS
    
    
      
        On the claim
      
    
    
    
      5.1.
      Fujifilm is prohibited to market and sell Capital Products in the Netherlands - directly or indirectly through any affiliate or designee - to Duomed's existing customers for a period of six months after the date of this judgment, except where the marketing and selling of these products would be allowed under Article 2.4 of the Distribution Agreement 2021.
      
    
    
      5.2.
      Fujifilm is ordered:
      
        
          to cancel or reject any orders for Capital Products (other than orders placed by Duomed) in the Netherlands that Fujifilm accepted or received from Duomed's existing customers, directly or indirectly through any affiliate or designee between 1 April 2023 and the date of this judgment, except where the orders would be allowed under Article 2.4 of the Distribution Agreement 2021,
        
        
          to send a newsletter to all current and potential customers for the Capital Products that it has approached since 1 April 2023, including the customers that received its newsletter of 1 April 2023, informing the customers of the orders given by the CSP as referred to above 5.1 and 5.2 (i),
        
        
          to continue – for a period of 6 months after this judgment - the supply of the Products for Duomed's existing customers in accordance with the terms of the Distribution Agreement 2021 and the parties' practice, including the granting of a discount of 20% to the prices in the price lists to any purchase order placed by Duomed with Fujifilm which would generally generate a discount,
        
        
          to accept - for a period of 6 months after this judgment - all purchase orders from Duomed for existing customers that satisfy the conditions of the Distribution Agreement 2021.
        
      
      
    
    
      5.3.
      Non-compliance with any of the orders given under 5.1 and 5.2 will result in Fujifilm having to pay an incremental penalty of EUR 5,000 for each day or part thereof that it fails to comply, with a maximum of EUR 1,500,000.
      
    
    
      5.4.
      Fujifilm is ordered to pay the costs of the proceedings, quantified up to this judgment at EUR 14,034.73 (EUR 6,000 in lawyer’s fees, EUR 106,73 for serving the writ of summons and EUR 7,928 in court fees), to be increased by the statutory interest as referred to in Article 6:119 of the Civil Code as from fourteen days after the date of the judgment.
      
    
    
      5.5.
      This judgment on Duomed’s claims is enforceable notwithstanding appeal.
      
    
    
      5.6.
      All other claims are dismissed.
      
      
        
          On the counterclaim
        
      
      
    
    
      5.7.
      All claims are dismissed.
      
    
    
      5.8.
      Fujifilm is ordered to pay the costs of the proceedings, quantified up to this judgment at EUR 3,000.
      
    
    
      5.9.
      This judgment on the counterclaim is enforceable notwithstanding appeal.
      
      
      
      
        Done by C.W.D. Bom, Judge, assisted by W.A. Visser, Clerk of the Court. 
        Issued in public on 5 July 2023.
      
      
      
      
      
        
          APPROVED FOR DISTRIBUTION IN eNCC