• Bijzonderheden van de zaak
    • Nationaal ID: HD 103.006.002
    • Lidstaat: Nederland
    • Gangbare benaming:X v. Architecten BV
    • Soort beslissing: Overige
    • Datum beslissing: 17/03/2009
    • Gerecht: Gerechtshof
    • Onderwerp:
    • Eiser:
    • Verweerder:
    • Trefwoorden:
  • Richtlijnartikelen
    Unfair Contract Terms Directive, Article 2 Unfair Contract Terms Directive, Article 3, 1. Unfair Contract Terms Directive, Article 3, 2. Unfair Contract Terms Directive, Article 3, 3.
  • Koptekst
    Arbitration clause in standard contract terms is not always an unfair contract term and it is the consumer that needs to prove its unfairness.
  • Feiten
    X concluded a contract with Architecten BV on the 26th of August 2003 for performance of certain services. Standard contract terms of the architects’ branch (SR 1997) were declared applicable to the contract. SR 1997 contain an arbitration clause. When a dispute arose between the parties as to the lack of payment of an invoice, Architecten BV started an arbitration procedure in December 2004 and then another one in April 2005. X answered that there was no contract concluded between him and Architecten BV, which means that also the arbitration clause should not be applied. The arbitration procedure ended with a verdict that X needs to pay to Architecten BV the amount of the invoice. X questioned the arbitration in court. Only in the appeal, for the first time, the possibility was mentioned of the arbitration clause being unfair pursuant to art. 6:233 BW and Art. 3 of the Directive.
  • Juridische kwestie
  • Uitspraak

    The court reminds that the Annex to the Directive is only an indication of the type of provisions that could be perceived as unfair. One of the provisions listed in the Annex of the Directive is an arbitration clause, and the Dutch legislator chose to put it on the grey list (art. 6:236n BW). The court refers back to the Mostaza Claro CJEU’s case pursuant to which a national court should annul an arbitration clause that it considers unfair, even if the consumer did not call upon the unfairness during arbitration proceedings. Dutch procedural law demands that a party claims invalidity of an arbitration procedure at the first appearance in front of arbiters under sanction of losing a right to claim that invalidity further (art. 1065 of the Dutch procedural law – Wetboek van Burgerlijke Rechtsvordering). This procedural rule should be applied and interpreted by national court in as far as possible in accordance with the binding EU law, so as to enable effective application of the Directive. However, the court sees no need to adjust interpretation of Dutch law to EU law, since, in general, an arbitration procedure in Dutch law is not seen as unfair and under circumstance of the given case there is no indication that this provision could be seen as unfair contractual term. This means that contrary to Mostaza Claro case the national court does not suspect unfairness of the arbitration clause and since the Annex of the Directive is only an indication of unfair contract terms, the national court does not need to recognize that contractual provision as unfair. It is for the consumer to prove that under given circumstances the arbitration clause was unfair, but the consumer in the given case failed to prove so. It is not sufficient to prove that the provision was not individually negotiated, that the provision did not enable the consumer to present his case to a regular court, nor that the arbitration procedure is more expensive. In the given case consumer had means to enter into this procedure.

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