PIL instrument(s)
European Enforcement Order (EEO)
Case number and/or case name
Gerechtshof ‘s-Hertogenbosch, 200.135.983_01
Publication in law review
AR 2016/3576
Link to original version
Details of the court
Netherlands, Second Instance
Articles referred to by the court
European Enforcement Order (EEO)
Article 6
Paragraph 1 SubParagraph a
Paragraph 1 SubParagraph b
Paragraph 1 SubParagraph c
Paragraph 1 SubParagraph d
Paragraph 2
Paragraph 3
Date of the judgement
29 November 2016
Appeal history

C/01/253045/HA ZA 12-828 (District Court Oost-Brabant)
CJEU's case law cited by the court
In the present proceedings, ODE claims - in essence - the payment of the amount of € 200,000 invoiced by it, plus contractual interest, extrajudicial collection costs and litigation costs, all insofar as practicable in stock and with the judgment as the judgment European Enforcement Title as referred to in Art. 6(1) EEO Regulation. Until 23 July 2012, ODE calculates the total amount to be claimed at € 218,338.02. ODE based its claim on the fact that it entered into the European Premium Vendor Agreement (EPVA) for the selling of goods with ID Com, that ID Com has thereby committed itself to payment of a total amount of € 300,000 and that it has failed to fulfill its obligations. Its payment obligation with regard to the invoiced amount of € 200,000. The Court of Appeal found that the written agreement of 6 August 2010, on which ODE based its claim, contained no condition or reservation. The mere fact that the written agreement of 6 August 2010 did not contain a condition precedent did not mean, at least not automatically, that the parties had not agreed such a condition. In this context, the Court of Appeal rejects ODE's appeal to Art. 25 of the MPA (a so-called "entire agreement clause"). According to this provision, the MPA takes precedence over all prior ("prior") and existing ("existing") communications, agreements and contracts. The MPA dates from 29 June 2009. The EPVA dates from 6 August 2010 and was therefore an agreement that came into being after the MPA. Such agreements or agreements fall outside the scope of Article 25 MPA. ID Com's defense against ODE's claim in the main action meant that, in its view, the payment commitment in the agreement of 6 August 2010 was subject to a condition that in principle precludes the claim for performance. ID Com provided explicit evidence on this point. The Court of Appeal therefore allowed her to provide proof of her argument that the parties agreed as a condition precedent that the amount of € 300,000 would first become payable if ID Com in the period from 1 July 2010 to 31 December 2011 would achieve a gross margin sale of more than € 3,500,000 to ODE. The court gave ID Com the opportunity to nominate witnesses in this regard and the decision is withhold until further assessment.

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