Dutch company Kosh (claimant) was granted and served an EPO against Scottish company Cashmaster (defendant).
Cashmaster lodged a statement of opposition (Art. 16(2) EPO), after which the court referred the case to national procedure (Art. 17(1) EPO).
Cashmaster filed an interlocutory application before the Dutch court, contesting court competence.
Kosh claims that Cashmaster did not lodge a statement of opposition within the prescribed time period. The court considers the referral to national court procedure a binding verdict. The court finds no faulty legal or factual grounds underlying the binding verdict and proceeds to review the interlocutory application.
Cashmaster disputes the applicability of the standard terms and conditions used by Kosh, which contain an exclusive forum selection clause for the Dutch court in Almelo (Art. 23 Brussels).
Therefore they say the court’s jurisdiction should be based on Art.2 Brussels I. Kosh alternatively disputes the court’s jurisdiction based on Art. 5(1(b)) Brussels I.
The court considers that, since the contract itself is disputed, in order to judge its own competence it has to judge whether a contract exists (CJEU 4 March 1982 Effer/Kantner). In accordance with Art. 10 Rome I, the court uses national law to determine whether a contract exists.
The court then finds that a contract indeed exists and Kosh’ standard terms and conditions are applicable. They were included with every invoice and Cashmaster, a professional party, never protested against the use of the terms and conditions.
Since the general terms and conditions are applicable and the exclusive forum selection clause is in effect, the court rules itself competent based on Art. 23 Brussels I.