Look away now. Dutch Court, wrongly, minded to uphold choice of court in tenancy agreement despite Article 24 Brussels Ia.

The wide (even if not absolute: see Handbook 2.162 ff) catchment area of Article 24(1) Brussels Ia in the specific context of tenancies is contested, so much so that when the Brussels I Regulation was being revised, the Commission proposed to widen the existing, narrow exception for short-time holiday lets, to rental agreements concerning tenancies of premises for professional use. However it was not followed by Council or Parliament.

Despite this established application of A24(1), the appeal judges in X v Y  ECLI:NL:GHAMS:2023:306 (seriously why the need for anonymity) question its applicability to a claim in rent arrears with the rental agreement concluded by the tenant so as to let the rooms professionally. Parties have agreed choice of court and law for The Netherlands, despite the property being located in Austria (the judge tries to keep even that from public eyes yet it is given away in 3.10). The judges 3.10 mistakenly nota bene assume that non-exlusively expressed choice of court, is indeed non-exclusive (A25 BIa says otherwise).  The judge equally wrongly suggests that a claim for arrears without claims viz for instance enjoyment of the property, obligations vis-a-vis the neighbours etc., is not caught by A24(1).

Should anyone think CJEU C-73/77 Sanders v Van der Putte comes to the rescue, they are wrong. I know the CJEU itself sloppily summarised that  case [13] in C-280/90 Hacker as meaning that A24(1) ‘did not apply to a contract which concerned the operation of a business’. In reality, in Sanders the CJEU concluded that A24(1) was not engaged due to the claim relating to the lease by lessor to lessee of a usufruct on a retail business, with lessor itself renting the property from a third party (that was not involved in the proceedings): that claim simply did not relate to a ‘tenancy’ between parties.

The Dutch courts clearly do not have jurisdiction and whichever party in the Dutch proceedings has an interest in that being confirmed, should say so.


EU Private International Law, 3rd ed. 2021, 2.174 ff.

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