Commercial Litigation

Knowledge of a person’s possible liability for the damage suffered is not sufficient for the short limitation period of five years to start running (Dutch Supreme Court, 31 March 2017).

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The Dutch Supreme Court ruled that that a prejudiced person’s knowledge of another person possibly being liable for the damage suffered is not sufficient certainty regarding the identity of the liable person for the short limitation period of five years to start running (Dutch Supreme Court, 31 March 2017, ECLI:NL:HR:2017:552). Legal background An action to claim damages is prescribed five … Read more

Supervisory liability for defective breast implants up to national law, ECJ rules

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Civil liability of a so-called notified body for negligent fulfilling of its supervisory obligations under the directive on medical devices (93/42/EEC) is not excluded, the ECJ ruled in its judgment of 16 February 2017 in Elisabeth Schmitt (C-219/15). Conditions of such liability are governed by national law. Background Elisabeth Schmitt had breast implants fitted. Unfortunately, they turned out to be … Read more

Extinctive prescription in case of possession in bad faith (art. 3:105 DCC): the former owner may reclaim the property on the basis of tort (art. 6:162 DCC)

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Essence of the case On 24 February 2017, the Dutch Supreme Court delivered a judgment (ECLI:NL:HR:2017:309) regarding acquisition of ownership of immovable objects by means of extinctive prescription (bevrijdende verjaring). Under Dutch law, a possessor who possesses an immovable that is not his property, becomes the owner of that good after a period of ten years of uninterrupted possession in … Read more

The end of pre-packs? EU Advocate General: automatic transfer of employees in case of a pre-pack

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On 29 March 2017, Advocate General Mengozzi rendered his opinion to the EU Court of Justice in the landmark case regarding the Estro pre-packed bankruptcy. Advocate General Mengozzi opines that a pre-pack does not fall under the exception to the EU Directive on transfer of undertakings, so that all rights and obligations of employees of the bankrupt transferor of an … Read more

Implementation of Antitrust Damages Directive: Dutch legislation effective as of 10 February 2017

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On 9 February 2017, the act implementing the Antitrust Damages Directive (Directive 2014/104 /EU, the ‘Directive‘) into the laws of the Netherlands (the ‘Implementation Act’) was published  in the official Bulletin of Acts and Decrees (het Staatsblad). The Implementation Act is effective as of 10 February 2017. The Directive was adopted on 26 November 2014 and contains numerous provisions relevant … Read more

Dutch Supreme Court elaborates on the validity of a settlement agreement that is contrary to mandatory law

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On 6 January 2017, the Dutch Supreme Court delivered its decision (ECLI:NL:HR:2017:19) on the validity of a contract of settlement (vaststellingsovereenkomst) (article 7:900 et seq. of the Dutch Commercial Code (DCC) that is contrary to mandatory law, thereby explaining article 7:902 DCC. According to the Supreme Court, a settlement agreement that is in breach of mandatory law is only valid … Read more

Supreme Court nuances the consequences of a wrongful invocation of the right of suspension

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In its decision of 4 November 2016, ECLI:NL:HR:2016:2517 (CIA / Heredium), the Supreme Court ruled that if – in hindsight – the right of suspension appears to have been invoked wrongfully, the debtor cannot be considered to be in default automatically. Whether a party was entitled to invoke a right of suspension depends on the interpretation of the agreement, taking … Read more

District Court of Limburg ruled that damages claims in the Dutch prestressing steel case are time-barred

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On 16 November 2016, the District Court of Limburg (“District Court“) rendered a final judgment in the Dutch prestressing steel case (ECLI:NL:RBLIM:2016:9897). The District Court ruled that the damages claims are time-barred under German law and therefore dismissed all claims against the defendant prestressing steel producers who appeared in the proceedings and filed defences including, inter alia, a defence of … Read more

The Netherlands Commercial Court bill in consultation

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On 16 December 2016, the legislative proposal for the Netherlands Commercial Court (NCC) entered into consultation, which will run until 1 February 2017. The intended new international trade chamber of the Amsterdam District Court (”NCC”) and the Amsterdam Court of Appeal (“NCCA”) will offer litigants the opportunity to litigate in English and will be able to give judgments in English. … Read more