Case summary

Deciding Body
Court of Appeal of Hertogenbosch
Gerechtshof 's-Hertogenbosch
Netherlands
National case details
Date of decision: 23.07.19
Registration ID: 200.231.218_01
ECLI:NL:GHSHE:2019:2794
Instance: Appellate on fact and law
Case status: Pending
Area of law
Consumer protection
Defective goods (consumer sale)

Safeguards for access to justice
Right to access a court, Right to a fair trial
Relevant principles applied
Effectiveness
In judicial dialogue
Judgement of the CJEU (Second Chamber), 14 February 2019, Case C-630/17 Anica Milivojević v. Raiffeisenbank St. Stefan-Jagerberg-Wolfsberg eGen

Identification of the case

Fundamental rights involved
  • Right to an effective remedy and to a fair trial (art. 47 CFREU)
EU law sources
  • Brussels I Regulation

Summary of the case

Facts of the case

Classics, a Belgian company, sold 3 Maserati 3500 GT’s to the claimant on the 25th of September 2015. The claimant started a procedure in rechtbank Zeeland-West-Brabant on the 15th of February 2017, claiming that Classics had failed to meet its obligations under the contract. The contract had a choice of forum clause which gave exclusive jurisdiction to Belgian courts. However, the claimant claimed that he was consumer at the time of the conclusion of the contract, as he merely wanted to use the cars for private use, meaning that article 18 of the Brussels 1 Regulation (Recast) applied, which would give jurisdiction to the Dutch courts. Rechtbank Zeeland-West Brabant issued an injunction against Classics in the amount of € 186,000. Classics appealed the decision to the Gerechtshof 's-Hertogenbosch, claiming that Rechtbank Zeeland-West Brabant lacked jurisdiction to hear the case, as the claimant was not a consumer under article 18 of the Brussels 1 Regulation (Recast) at the time of the conclusion of the contract, due to the belief that two of the Maserati’s had been bought by a company under the defendant’s control. The claimant had asked Classics to invoice Automotive Services Trading International for two of the cars, with the total amount subsequently being paid for by the company. Thus, the Court must determine whether the claimant is a consumer for the purposes of the Brussels 1 Regulation (Recast).

Type of enforcement
  • Civil judicial enforcement
Reasoning (legal principles applied)

The Court must determine how wide to interpret the term ‘consumer’ in article 17 paragraph 1 of the Brussels 1 Regulation (Recast), to resolve whether the Dutch Courts had jurisdiction to decide the case at hand.

Firstly, the Court considers that it is the duty of both the Court of first instance as well as the Court of Appeal to examine the jurisdiction of the Dutch Courts with regards to cases falling under the Brussels 1 Regulation (Recast). Furthermore, the judges must not limit themselves to the claims of the parties but must consider all aspects of the legal relationship that exists between the parties.

The Court does not accept the claimants suggestion that the Court had used the incorrect assessment framework in its decision, stating that the notion of ‘consumer’ for the purposes of articles 17 and 18 of the Brussels 1 Regulation (Recast) must be strictly construed, reference being made to the position of the person concerned in a particular contract, as supported by the recent CJEU judgment in Anica Milivojević v. Raiffeisenbank St. Stefan-Jagerberg-Wolfsberg eGen. This was contrary to the claimant’s suggestion that the test in Gruber, which considered the link between the purpose for which the good is used and the trade or profession of the person involved, should be used.

Secondly, the Court must determine how widely the term ‘consumer’ must be interpreted when a contract is concluded for a dual purpose; partly for private purposes and partly for business use. The Court references the Anica Milivojević v. Raiffeisenbank St. Stefan-Jagerberg-Wolfsberg eGen decision, which states that the person can rely on the provisions of article 17 of the Brussels 1 Regulation (Recast) only if the link between the contract and the profession is so slight as to be marginal. It needs to be evident and clear that the contract was concluded for private purposes.

Finally, the Court decided that the choice of forum clause in the contract does not take precedence over all other jurisdictional claims, as article 25 paragraph 4 of the Brussels 1 Regulation (Recast) states that choice of forum clauses to not apply to consumer contracts, unless one of the elements in article 19 of the Brussels 1 Regulation (Recast) are satisfied. Classics had not proved any these conditions.

In conclusion, the Court annuls the decision by rechtbank Zeeland-West Brabant and affords the claimant the opportunity to prove that he was a consumer at the time of the conclusion of the contract.

Role of the Charter and role of the general principles on enforcement

Relation to scope of the Charter

This case does not directly cite the EU Charter of Fundamental Rights; however, it affects art. 47 of the Charter – the right to an effective remedy and a fair trial. This case concerns the boundaries of consumer protection and access to court in different Member States.

Safeguards for access to justice
  • Right to access a court
  • Right to a fair trial
Relevant principles applied
  • Effectiveness

Elements of judicial dialogue

Vertical dialogue type
  • Dialogue between high court - lower instance court at national level
Cited CJEU
  • CJEU, C-630/17Anica Milivojević v. Raiffeisenbank St. Stefan-Jagerberg-Wolfsberg eGen
Dialogue techniques

Conform interpretation with EU law as interpreted by the CJEU.

Purposes of using judicial dialogue

To solve an issue of jurisdiction concerning the Brussels 1 Regulation (Recast).

Expected effects of judicial dialogue

Judicial reform.

Additional notes on the decision

Impact on national case law

Lower courts will more closely at jurisdictional questions, even if they are not brought up by the parties. However, there is no system of binding precedent in the Netherlands.

External links

Case author

Silvester van Kordelaar, University of Groningen

Published by Chiara Patera on 29 January 2020