Uitspraak
AMSTERDAM COURT OF APPEAL
Netherlands Commercial Court of Appeal
Case number: 200.320.438
Judgment given on 6 August 2024
In the matter of
the company incorporated under foreign law
Meriç Rüzgar Enerjisi Elektrik Üretim A.Ş.,
Konak, Turkey,
claimant in appeal and defendant in cross-appeal,
represented by S.A.K. d’Azevedo and C. Jeloschek, lawyers,
the private company with limited liability
Lagerwey Systems B.V.,
Barneveld, Netherlands,
defendant in appeal and claimant in cross-appeal,
represented by W. Kroeze and E.M. Tjon-En-Fa, lawyers.
The parties are referred to below as Meriç and Lagerwey.
1.The procedure
1.1.
In addition to the file of first instance, the following documents have been submitted to the Court:
- the initiating document in appeal;
- the grounds of appeal by Meriç, and Exhibit A,
- the statement of defence in appeal and statement of grounds for cross-appeal by Lagerwey, and Exhibits R-44 through R-51,
- the statement of defence in cross-appeal by Meriç, and Exhibits 58 through 64,
- the response to newly submitted exhibits by Lagerwey, and Exhibits R-52 through R-54.
1.2.
The case was heard on 29 May 2024. The pleading notes and the court record of the hearing are part of the case file, including the Exhibits R-55 through R-57 that Lagerwey submitted for the hearing and the Exhibits 65 through 67 that Meriç submitted for the hearing.
2.The facts
2.1.
Meriç is a Turkish company that,
inter alia, operates wind power plants in Turkey. Mr [A] is CEO and shareholder of Meriç. [A] owns several energy-related businesses in Turkey and in Germany. One of these companies is Amperax Energie GmbH. In 2014 Amperax acquired Prokon Regenerative Energien GmbH, a German manufacturer of wind turbines.
inter alia, operates wind power plants in Turkey. Mr [A] is CEO and shareholder of Meriç. [A] owns several energy-related businesses in Turkey and in Germany. One of these companies is Amperax Energie GmbH. In 2014 Amperax acquired Prokon Regenerative Energien GmbH, a German manufacturer of wind turbines.
2.2.
Lagerwey is a Dutch company that develops, manufactures and constructs wind turbines. In October 2010, Lagerwey established a local company in Türkiye called: Lagerwey Enerji Sanayi Ve Ticaret Anonim Sirketi (“Lagerwey Turkey”). One of Lagerwey Turkey's shareholders and board members was Mr [B]. In the past, [B] was Lagerwey Turkey's General Manager.
2.3.
Lagerwey and Meriç entered into negotiations for a licensing agreement; Meriç would build and sell wind turbines designed by Lagerwey. At some point the parties changed course and started negotiations on the sale and delivery of two Lagerwey wind turbine generators. These are complete windmill installations, including the towers, nacelles, the turbines and the blades, together referred to as “WTGs”. The WTGs were to be used on a wind power plant at a site near Hamzabeyli in Turkey (the “Hamzabeyli Project”)
2.4.
During the negotiations in September 2013 Meriç proposed:
“
8- Taking Over Certificate should be tied to “Wind Farm’s Provisional Acceptance by Ministry of Energy in Turkey”.
8- Taking Over Certificate should be tied to “Wind Farm’s Provisional Acceptance by Ministry of Energy in Turkey”.
9- There should be a sub-clause in Article 6 such as: “Contractor shall support the Employer with relevant technical documentation during project file submission phase of Ministry of Energy in Turkey and also during Wind Farm’s Provisional Acceptance by Ministry of Energy in Turkey. We must be supported by LW[Lagerwey, the Court]
during the process with the Ministry of Energy in Turkey. All other major turbine suppliers provide this.”
during the process with the Ministry of Energy in Turkey. All other major turbine suppliers provide this.”
Lagerwey replied to both proposed clauses:
“
This is new to us, please explain.”
This is new to us, please explain.”
and Meriç answered on item 8:
“
The wind farm becomes officially operational when its provisional acceptance is completed by Ministry of Energy in Turkey. It is a 2-3 day task where the officials come and inspect the wind farm against projects and specifications submitted before construction and installation. Wind turbine supplier should support the employer during this phase (preparation of the projects/specifications and physical inspection). Physical inspection is 1-2 engineers from LW with power of attorney to sign official documents on site. During the inspection turbines are tested (simple power tests, emergency stop, grid communication etc.). Before this task is completed, the wind farm’s produced energy cannot be sold to the grid. Basically before this happens, the energy is provided to the grid for free. It is normal to tie the final symbolic payment to this milestone.”
The wind farm becomes officially operational when its provisional acceptance is completed by Ministry of Energy in Turkey. It is a 2-3 day task where the officials come and inspect the wind farm against projects and specifications submitted before construction and installation. Wind turbine supplier should support the employer during this phase (preparation of the projects/specifications and physical inspection). Physical inspection is 1-2 engineers from LW with power of attorney to sign official documents on site. During the inspection turbines are tested (simple power tests, emergency stop, grid communication etc.). Before this task is completed, the wind farm’s produced energy cannot be sold to the grid. Basically before this happens, the energy is provided to the grid for free. It is normal to tie the final symbolic payment to this milestone.”
And answered on item 9:
“
Please see item 8.”
Please see item 8.”
2.5.
Meriç and Lagerwey signed a Sales Agreement and a related Full-Service Agreement on 12 September 2013. With the Sales Agreement, Meriç purchased two L100-2.5 MW Wind Turbine Generators, at the time Lagerwey 's newest model of WTGs, for the Hamzabeyli Project. The parties initially agreed on a price of EUR 2,474,000.00 per WTG, i.e. EUR 4,948,000.00 in total. The price was to be paid in eight instalments according to the delivery of the various components of the WTGs, each referred to by the parties as "Milestones". On signing the Agreement, the first instalment of 30% of the purchase price was due. Meriç had to provide Lagerwey with an irrevocable letter of credit for the remaining seven Milestone payments. Furthermore, and as far as relevant for this dispute, the Sales Agreement contains the following considerations and provisions:
"[…]
Employer[Meriç, the Court]
has obtained or will obtain all necessary approvals, permits, licenses and project finance, to build and operate two wind turbine generator(s), type L100-2.5MW[...]
at Hamzabeyli site[...]
Employer[Meriç, the Court]
has obtained or will obtain all necessary approvals, permits, licenses and project finance, to build and operate two wind turbine generator(s), type L100-2.5MW[...]
at Hamzabeyli site[...]
Contractor[Lagerwey, the Court]
has offered to design, produce, deliver, install and commission the WTG('s)[...]
at the Site[...]
has offered to design, produce, deliver, install and commission the WTG('s)[...]
at the Site[...]
Article 3 - Conditions Precedent
3.1 [...]
[...]
The Agreements shall become effective in its entirety on the date on which the Conditions Precedent have been satisfied. Parties will do its outmost to fulfil the Conditions Precedent at the earliest possible. The Conditions Precedent include:[…]
The Agreements shall become effective in its entirety on the date on which the Conditions Precedent have been satisfied. Parties will do its outmost to fulfil the Conditions Precedent at the earliest possible. The Conditions Precedent include:[…]
a. Employer has transferred to Contractor the advanced payment[…]
at or before the 18th of September 2013
at or before the 18th of September 2013
b. Employer has provided to Contractor the payment security[...]
at or before the 30th of September 2013; […]
at or before the 30th of September 2013; […]
Article 6 - Obligations of Contractor
6.1
The Contractor undertakes:
a. In accordance with this Agreement, with due care and diligence, design, manufacture, deliver to the Site, erect test and commission the Plant and carry out the Works within the Time for Completion;
b. To comply with all Legal Requirements, security measures, devices, precautions and personal means of protection provided for by the law for the executions of the Works;
[...]
e. To obtain and maintain for the duration of the Agreement, all permits, authorizations, licenses, approvals and consents, necessary for the performance of its obligation under the Agreement.
f. To support the Employer with relevant technical documentation during the project file submission phase of Ministry of Energy in Turkey and also during wind farm's provisional acceptance by Ministry of Energy in Turkey.
Article 7 - Obligations of Employer
7.1
The Employer undertakes:
[...]
d. To obtain and maintain for the duration of the Agreement, all permits, authorizations, licenses, approvals and consents, necessary to build and operate the Plant on the Site;
e. To perform, at its own risk and costs, all necessary activities to allow the Contractor to comply with its obligations under this Agreement,[...];
Article 9 – Work Schedule
[…]
9.2
In the event Employer does not comply with its obligations under this Agreement as stipulated in Article 7.1. (d) within the timescales detailed in the Work Schedule within Annex 8, and provided that Contractor has honoured its obligations under the work schedule in Annex 8, then, 1) Contractor shall remind Employer to fulfil its obligations within a reasonably short new deadline for payment. In case this deadline elapses without fulfilment, Contractor will be entitled to increase the Contract Price with 0.5% (a half per cent) for each calendar month the obligations are not duly performed and 2) Contractor will provide to Employer an adapted Work Schedule which reflect the consequences, the Contractor will do his best to minimize the delay as much as reasonable possible. In the event the noncompliance of Employer last for more than 180 days, article 3.2 of this Agreement is applicable. In case of termination of this agreement in relation to the above, each Party will bear its own costs, profit loss and consequential damage which arise due to such termination.
[…]
Article 15 - Undertaking and Warranties of Contractor
15.1
Contractor represents and warrants to Employer:
[...]
b. To comply with all applicable Legal Requirements known and in force at the moment this Agreements[sic]
come into effect (Commencement Date);[...]
come into effect (Commencement Date);[...]
28.6
Entire Agreement
This Agreement contains and expressly refers to the entire agreement between the Parties with respect to its subject matter and expressly excludes any warranty, condition or other undertaking implied at law or by custom and supersedes all previous agreements and understandings between the Parties with respect to its subject matter and each of the Parties acknowledges and confirms that is does not enter into this Agreement in reliance on any representation, warranty or other undertaking by the other Party not fully reflected in the terms of this Agreement.
[...]
Article 21 - Indemnification and Liability
21.1
Liability
Subject to Articles 21.2 and 21.3 each Party shall be liable to the other Party for the loss directly and foreseeable resulting from any breach by the first Party of its
obligations hereunder, stated that the total liability of the Contractor (other than in respect of personal injury or death) for the first two operational years after signing of the Take Over Certificate, shall in no event exceed the amount of 25% (twenty five percent) of the Contract Price. After this period the total liability of the Contractor under this agreement shall in no event exceed the amount of 15% (fifteen per cent) of the Contract Price.[…]
obligations hereunder, stated that the total liability of the Contractor (other than in respect of personal injury or death) for the first two operational years after signing of the Take Over Certificate, shall in no event exceed the amount of 25% (twenty five percent) of the Contract Price. After this period the total liability of the Contractor under this agreement shall in no event exceed the amount of 15% (fifteen per cent) of the Contract Price.[…]
21.2
Own loss
Notwithstanding Article 21.1, each Party shall be responsible for, and shall indemnify the other Party against claims in respect of, loss of or damages to persons or property incurred by the first Party and its contractors, employees and agents resulting from the act omission or negligence of the other Party in performance of, or otherwise in connection with, this Agreement.
21.3
Liquidated damages
In no case shall either Party be liable to the other Party for any indirect or consequential losses or damages unless such is explicitly mentioned in any part of this Agreement.
[…]
Article 29 - Governing law and arbitration
29.1
Governing law
This Agreement shall be governed by and construed in all respects in accordance with the laws of the Netherlands. [...]."
2.6.
Meriç paid the first Milestone (the advanced payment as referred to in Article 3.1 (a) of the Sales Agreement) of EUR 1,485,000.00 on 2 October 2013. In addition, on 22 June 2015, Meriç provided Lagerwey with the letter of credit as a security for payment of the remaining seven Milestones (the payment security as stated in Article 3.1 (b) of the Sales Agreement). Meanwhile, the contract price was increased by EUR 51,500.00 to an amount of EUR 4,999,500.00 in total.
2.7.
On 13 April 2015, Lagerwey sent an overview of relevant technical documents to Meriç, including a "Design Evaluation Conformity Statement" (“DECS”). A DECS is a document, provided by a third party that proves that a WTG is designed in conformity with the applicable (safety) standards. Obtaining a DECS is one of the steps in obtaining a type certificate (see below).
2.8.
On 25 May 2015, [B] forwarded the following e-mail from [C] (an electrical engineer hired by Meriç) to Mr [D], the Chief Technology Officer at Lagerwey, with the request to provide the necessary information listed in the e-mail:
“
Dear[B]
,
Dear[B]
,
I listed below necessary documents and informations about electrical and constructional works:[…]
2.) Type test certificates (necessary for ETKB accept files)[...]
.”
.”
A type certificate is the accreditation done by a third party confirming that a certain model of the WTGs meets the relevant standards and checks. In order to obtain a type certificate for a new model of a WTG, the WTG needs to be tested at full scale and for an extended period of time, often during different seasons, to collect sufficient data at higher windspeeds and different wind directions.
2.9.
A few days later, on 28 May 2015, Mr [E], a senior project manager at Lagerwey, sent to
inter alia, [B] and [F](from Amperax) the following email:
inter alia, [B] and [F](from Amperax) the following email:
“
Please find the Design Evaluation Conformity Statement which we hold for this turbine.”
Please find the Design Evaluation Conformity Statement which we hold for this turbine.”
2.10.
On 29 September 2015, Meriç filed an application to obtain approval from the Turkish Ministry of Energy and Natural Resources (the “Turkish Ministry”) for the Hamzabeyli Project. On 5 October 2015, Meriç received an e-mail from the Turkish Ministry stating that the application was incomplete. The Turkish Ministry listed various omissions, the requirement of a type certificate being one of them:
+
-
13
Certificate of Conformity
At lease one of the options of “a”, “b”, “c”, “d” and “e” must be presented
a. Project Type Approval Letter
b.Typical (Test) Certification
It must be obtained from accredited organizations. If it had already been presented before, then it does not need to be submitted again
?
Type Certificate and its attachments must be submitted
c. Certification of Design […]
d. Certification of Conformity with the TSE Criterias[…]
e. Calculation of Design[…]
2.11.
By e-mail dated 12 October 2015, Meriç wrote to Lagerwey as follows:
“[...]
We kindly request the Type Certificate of the WTGs. It is requested for governmental project approval purposes.[...].”
We kindly request the Type Certificate of the WTGs. It is requested for governmental project approval purposes.[...].”
2.12.
On the same day, Lagerwey ([E]) answered as follows:
“[...]
Please find attached the Design Assessment Conformity Statement by Germanischer Lloyd which we hold for this turbine.[...].”
Please find attached the Design Assessment Conformity Statement by Germanischer Lloyd which we hold for this turbine.[...].”
2.13.
Meriç then submitted the DECS to the Turkish Ministry.
2.14.
By e-mail dated 25 December 2015, a sub-contractor for Meriç emailed Lagerwey ([E]) and Meriç ([G]) including [B] and [F] in the CC, as follows:
“[...]
We have assumed that the Lagerwey turbines were having type certificate at the time of scheduling the work programme. Please be advised that we may encounter serious problems due to the lack of such certificate[...].”
We have assumed that the Lagerwey turbines were having type certificate at the time of scheduling the work programme. Please be advised that we may encounter serious problems due to the lack of such certificate[...].”
2.15.
In his answer of 29 December 2015, [E] replied to [G], [F] and [B]:
“
In the last weeks, we have been informed with pieces of information and the challenges that the project (and the Project/Company Owner) faces and will assist where possible, however a Type Certificate cannot simply be obtained in short notice.
In the last weeks, we have been informed with pieces of information and the challenges that the project (and the Project/Company Owner) faces and will assist where possible, however a Type Certificate cannot simply be obtained in short notice.
During the process of achieving the Agreement (SA2013 TKO01) for delivering the turbines, and again on 12-10-2015 we confirmed that the turbine has a Design Assessment Conformity Statement by Germanischer Lloyd which we hold for this turbine, and provided VRES a copy of it (again attached). In case it helps, we hereby also attach the EC Declaration of Conformity for the turbine.
*Here at Lagerwey, we will support and assist where possible, and with Technical documentation, but cannot be held liable for costs made by the subcontractor of our client, not only since Lagerwey does not hold a direct contractual relationship with the SU-group, but also since Lagerwey was not informed, nor consulted about any decision to have equipment on stand-by. For clarity, Lagerwey was, and still is acting in good faith and in accordance with the Agreement between Lagerwey and Meric Ruzgar, to timely supply the anchoring materials, and other turbine components, and currently already have blades on a shipment to Turkey, due to arrive between 10 & 20 Jan‘16.
Again, Lagerwey would like to assist where possible and we understand that a meeting has been planned for early January 2016 to discuss further strategy.*
We look forward to hear about instructions in case they may change from those in the Agreement.[…]”
By e-mail of the same date, the same sub-contractor replied as follows:
“[...]
Secondly, thank you very much for the documents you've provided. However, please be advised that such documents are not sufficient in Turkey, and type certificate is still required.[...]
I'd like to clarify that despite our position as the sub-contractor, our main liabilities and duties against Meriç Enerji cover obtaining zoning and construction permissions, as well as completion of construction and electric mechanics works. And for such permissions, type certificate is required from us. We do our best endeavours in order to get such permissions without having the certificate, but it takes a lot more time and costs more as the same getting type certificates.[...]
Secondly, thank you very much for the documents you've provided. However, please be advised that such documents are not sufficient in Turkey, and type certificate is still required.[...]
I'd like to clarify that despite our position as the sub-contractor, our main liabilities and duties against Meriç Enerji cover obtaining zoning and construction permissions, as well as completion of construction and electric mechanics works. And for such permissions, type certificate is required from us. We do our best endeavours in order to get such permissions without having the certificate, but it takes a lot more time and costs more as the same getting type certificates.[...]
I'd like to emphasize that provision of such certificate is a legal requirement and without providing the type certificate, it is legally not possible to obtain "acceptance" and also, sell electricity.[...].”
2.16.
By e-mail dated 5 January 2016, [E] wrote to Meriç ([G]), with [F] and [B] copied in on the email, that Lagerwey had been making preparations to obtain the type certificate and that the type certificate could be expected by the end of 2016. In the e-mail [E] also remarked that Meriç would have to pay for the components that were to be stored. On the same day, [G] responded:
“[...]
I remind you the advance payment of 1.484.000 euro were made after the communication with Lagerwey Turkey, Mr. [B][sic]
according to finish your type certificate problem ASAP and reach opening date of the Power plant on 15. April 2016.[...].”
I remind you the advance payment of 1.484.000 euro were made after the communication with Lagerwey Turkey, Mr. [B][sic]
according to finish your type certificate problem ASAP and reach opening date of the Power plant on 15. April 2016.[...].”
2.17.
By e-mail dated 6 January 2016, [D] wrote to [G] as follows:
“[...]
Contractor has and will provide technical documents to perform its obligations. A Type Certificate is not a technical document. It is not agreed that Contractor would supply Employer with a Type Certificate. Employer knows since 2013 that the Plant will be built and the need for a Type Certificate has not been discussed before. Employer has requested the DECS two months ago which has been provided[...].
Contractor is not in breach of contract and confirms to keep fulfilling its obligations under the agreement.[...].”
Contractor has and will provide technical documents to perform its obligations. A Type Certificate is not a technical document. It is not agreed that Contractor would supply Employer with a Type Certificate. Employer knows since 2013 that the Plant will be built and the need for a Type Certificate has not been discussed before. Employer has requested the DECS two months ago which has been provided[...].
Contractor is not in breach of contract and confirms to keep fulfilling its obligations under the agreement.[...].”
2.18.
By e-mail dated 14 January 2016 [G] wrote to [D] as follows:
“[...]
This is to inform you, that due to the reason you where not able to provide us with needed Certificate for Wind turbines during Edirne project, we have decided not to use Lagerwey for this environment. The decision had to be taken, for not loosing the permission of electricity production of our Company in Turkey. The delay and upcoming cost has to be covered from Lagerwey , therefore our Lawyers will get in touch with you to discuss the legal part. All parts which has produced due to Edirne project, we ask you to deliver to Prokon Hamburg storehouse.[...].”
This is to inform you, that due to the reason you where not able to provide us with needed Certificate for Wind turbines during Edirne project, we have decided not to use Lagerwey for this environment. The decision had to be taken, for not loosing the permission of electricity production of our Company in Turkey. The delay and upcoming cost has to be covered from Lagerwey , therefore our Lawyers will get in touch with you to discuss the legal part. All parts which has produced due to Edirne project, we ask you to deliver to Prokon Hamburg storehouse.[...].”
2.19.
At the end of 2016, Lagerwey used the WTGs that it had made for Meriç for a different project. Lagerwey did not inform Meriç of this decision.
2.20.
On 13 July 2017, Lagerwey obtained the type certificate for the WTGs.
3.The claim and the counterclaim
First instance (NCC)
3.1.
Meriç sought an order by means of a judgment enforceable notwithstanding appeal, by which the NCC would:
3.1.1.
declare that Lagerwey has breached the Sales Agreement by failing to obtain and provide on time a type certificate for the WTGs;
3.1.2.
declare that Meriç was entitled to suspend performance of the Sales Agreement as a result of the aforementioned breach of contract by Lagerwey;
3.1.3.
declare that Lagerwey has breached the Sales Agreement by drawing under the L/C despite not having delivered two WTGs that could be used for the project and, thus, having failed to complete the contractual payment Milestones;
3.1.4.
declare that Meriç was entitled to terminate the Agreements as a result of Lagerwey 's contractual breaches;
3.1.5.
order Lagerwey to repay Meriç the payment of Milestones i to vi - i.e. an amount of EUR 4,643,190.00 - plus the statutory commercial interest rate and costs as from 25 November 2019, or another date as determined by the Court in the proper administration of justice;
3.1.6.
order Lagerwey to pay Meriç an amount of EUR 9,550.00 consisting of extrajudicial collection costs;
3.1.7.
declare that Lagerwey is liable for the damage caused by its contractual breaches;
3.1.8.
order Lagerwey to pay Meriç damages as yet to be determined in follow-up proceedings and to refer such determination to proceedings to establish the quantum of damages; and
3.1.9.
order Lagerwey to pay the costs of these proceedings, including the subsequent costs amounting to EUR 131.00 without service or EUR 199.00 in the event of such service, respectively, if and to the extent that Lagerwey fails to comply within the legal term of two days, or within a term deemed reasonable by the Court, after service of the judgment to be given in this matter.
3.2.
Lagerwey filed a counterclaim, seeking an order by means of a judgment enforceable notwithstanding appeal, by which the NCC would:
3.2.1.
declare that Lagerwey did not breach any of its obligations under the Sales Agreement;
3.2.2.
declare that Meriç's attempted termination of the Sales Agreement had no effect;
3.2.3.
terminate the parts of the Sales Agreement that have not been performed, notably the installation and commissioning of the WTGs, as well as any guarantees on the WTGs’ performance and/or components;
3.2.4.
order Meriç to make arrangements at its own expense for delivery of the components of the WTGs that are currently stored by or at the expense of Lagerwey within one month after the date on which the final judgment is given, under incremental penalty payment of EUR 10,000.00 per day or part thereof for each day that Meriç fails to do so thereafter;
3.2.5.
declare that Meriç is liable for the damage that Lagerwey suffered as a result of Meriç breaching the Sales Agreement and to order Meriç to pay Lagerwey the damages it suffered thus far, which damage amounts to:
(a) EUR 102,113.00 in lost profits related to the Full Service Agreement, plus statutory interest as from 14 January 2016 or any other date to be determined by the Court in the proper administration of justice, until the date this amount is paid in full;
(b) EUR 45,902.00 for storage costs, transportation costs and VAT already paid or owed by Lagerwey, plus statutory interest as from 22 March 2021 or any other date to be determined by the Court in the proper administration of justice, until the date that this amount is paid in full;
(c) EUR 254.13 for storage costs per calendar day as from 6 April 2022 onwards, until the day that Meriç accepts delivery of the WTG components;
3.2.6.
order Meriç to pay the costs of the proceedings, plus statutory interest as from three days after the judgment has been given onwards.
3.3.
The NCC ordered Lagerwey to repay to Meriç an amount of EUR 2,010,370.80, plus statutory interest (in accordance with Article 6:119 Dutch Civil Code (“DCC”)) starting from the fifteenth day after the date the Sales Agreement is partially terminated by the NCC until payment is made in full and the NCC ordered Meriç to pay the costs of the proceedings. As to the counterclaim the NCC declared that Lagerwey did not breach any of its obligations under the Sales Agreement and that Meriç’s attempted termination of the Sales Agreement had no effect. The NCC terminated the parts of the Sales Agreement that had not been performed (notably the installation and commissioning of the WTGs), and ordered Meriç to make arrangements at its own expense for delivery of the components of the WTGs that were at that moment stored by or at the expense of Lagerwey within one month after judgment.
In appeal (NCCA)
3.4.
Meriç in its claim requests that the Court:
3.4.1.
annul the judgment rendered by the NCC on 29 June 2022;
3.4.2.
make an award as set out in 3.1 above;
3.4.3.
dismiss the counterclaim filed by Lagerwey;
3.4.4.
order Lagerwey to pay the costs of the legal proceedings in both first and second instance, including payment of the so-called subsequent costs and the legal interest relating to the cost award should Lagerwey fail to pay within 14 days after the final decision in appeal.
In the cross-appeal
3.5.
Lagerwey in its cross-appeal requests that the Court annul the considerations 2.5, 5.19, 5.27, 5.28, 5.30 through 5.37, 5.38 last paragraph, 6.1, 6.4, 6.10 and 6.11 of the judgment, and order Meriç to:
3.5.1.
pay back to Lagerwey the amount of EUR 1,011,316.80 that Lagerwey paid to Meriç following the judgment of the NCC, with statutory interest (Art. 6:119 DCC) from the date of payment by Lagerwey (14 July 2022) until the date that payment has been made by Meriç in full;
3.5.2.
pay to Lagerwey an amount of EUR 102,113 for lost profits related to the Sales Agreement, with statutory interest from 14 January 2016 or any other date to be determined by the Court, until the date this amount has been paid in full;
3.5.3.
pay to Lagerwey the following amounts in relation to the storage, transport and VAT paid in relation to the WTG components (including the WTG towers):
a. EUR 155,268 for the VAT paid over the WTG towers, with statutory commercial interest (Art. 6:119a DCC) from 19 January 2022 onwards, or in the alternative, the statutory interest (Art. 6:119 DCC) until the date that payment has been made by Meriç in full;
b. EUR 36,900 for the transportation of the WTG towers, with statutory interest (Art. 6:119 DCC) from 4 May 2022 onwards until the date that payment has been made by Meriç in full;
c. EUR 76,134 for external storage at Vlastuin up to and including July 2023, with statutory interest (Art. 6:119 DCC) from the due dates of the respective invoices onwards until the date that payment has been made by Meriç in full;
d. EUR 274,290 for storage of the WTG towers up to and including July 2023, with statutory interest (Art. 6:119 DCC) from the due dates of the respective invoices onwards until the date that payment has been made by Meriç in full; or, with regard to the statutory (commercial) interest over the above-mentioned claims, any other date to be determined by the Court in the proper administration of justice, until the date this amount is paid in full;
3.5.4.
pay to Lagerwey an amount of EUR 12,718 per month or part thereof (starting 1 September 2023) as compensation for the storage costs that Lagerwey will incur after the date of submission of the statement of defence in appeal, until and including the month that Meriç accepts delivery of all WTG components (including the WTG towers with the statutory interest from the first day of each month onwards;
3.5.5.
accept delivery of the components of the WTG that are currently stored by or at the expense of Lagerwey within one (1) month after the date of the final judgment in appeal, subject to a penalty payment of EUR 10,000 for each day (or part thereof) that Meriç fails to do so thereafter;
3.5.6.
pay the costs of these proceedings, both in first instance and in the appeal.
4.The considerations
Introduction
4.1.
On 12 September 2013 Lagerwey sold two wind turbine generators to Meriç. However, on 14 January 2016 Meriç informed Lagerwey that it would not take the wind turbine generators because the type certificate was not provided. Meriç argues that it was agreed that Lagerwey would ensure that the certificate would be obtained, and that it needed the type certificate to get approval from the Turkish Ministry. Lagerwey disputes this, and argues that it was never agreed that it would also provide the type certificate and that in any event Meriç did not actually need it.
Jurisdiction and applicable law
4.2.
By letters of 18 and 24 March 2020, Meriç and Lagerwey chose the NCC as the forum to hear their case (choice of forum clause). The Amsterdam District Court therefore had jurisdiction in first instance under Article 25(1) of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast). As a consequence, the Court now has jurisdiction to hear this appeal.
4.3.
Clause 29.1 of the Sales Agreement provides that the agreement is subject to Dutch law, and the Court will apply Dutch Law. The parties further agreed to exclude the applicability of the Vienna Sales Convention (“CISG”).
The essence of the dispute
4.4
The standpoint of Meriç is that it was agreed that Lagerwey would ensure that a type certificate would be obtained and provided to Meriç together with the delivery of the WTGs, or in any event not later than necessary for Meriç to be able to have obtained the permit from the Turkish Ministry when the Hamzabeyli Project would become operational. Thus, according to Meriç, Lagerwey had breached the agreement by not having provided the certificate by 14 January 2016, as by then, time would have been too short to obtain the necessary permit before completion of the Hamzabeyli Project. Therefore, according to Meriç, it was entitled to inform Lagerwey by e-mail of 14 January 2016 that it would not use Lagerwey’s WTGs. This e-mail is seen by the parties as in effect terminating the Sales Agreement, although in these proceedings they have also argued that it is to be interpretated legally under Dutch law as a suspension of its obligations (
opschorting). Either way, if Meriç, is right, Lagerwey breached the agreement and may be held liable for damages incurred by Meriç. If, however, Lagerwey’s argument is justified – as said above, that it was never agreed that it would take care of obtaining the type certificates – then Meriç’s claims would fail, and Lagerwey’s claims would become relevant.
opschorting). Either way, if Meriç, is right, Lagerwey breached the agreement and may be held liable for damages incurred by Meriç. If, however, Lagerwey’s argument is justified – as said above, that it was never agreed that it would take care of obtaining the type certificates – then Meriç’s claims would fail, and Lagerwey’s claims would become relevant.
4.4.
The main question to be answered is therefore whether it has indeed been agreed that Lagerwey would ensure that the type certificate would be obtained and provided to Meriç.
Interpretation
4.5.
This question requires a close look at the Sales Agreement in view of all the relevant circumstances, as under Dutch law, the obligations of the parties towards each other are not merely determined by a linguistic interpretation of the clauses of a written agreement, but are mainly to be found in accordance with such meaning as the parties on both sides may reasonably have given to these clauses in view of the relevant circumstances and in accordance with what they were reasonably entitled to expect from each other in that respect.
Entire agreement clause
4.6.
However, before dealing with Meriç’s submissions as to its understanding of Lagerwey’s obligations, the Court has to address first a far-reaching preliminary defence raised by Lagerwey. As the Sales Agreement does not mention in so many words an obligation of Lagerwey to provide a type certificate, Lagerwey has invoked the entire agreement clause, arguing that this clause bars Meriç from invoking any such obligation of Lagerwey in any event. This clause reads as follows:
“This Agreement contains and expressly refers to the entire agreement between the Parties with respect to its subject matter and expressly excludes any warranty, condition or other undertaking implied at law or by custom and supersedes all previous agreements and understandings between the Parties with respect to its subject matter and each of the Parties acknowledges and confirms that it does not enter into this Agreement in reliance on any representation, warranty or other undertaking by the other Party not fully reflected in the terms of this Agreement.”
4.7.
The Court notes that this clause mentions “
each of the Parties acknowledges and confirms that it does not enter into this Agreement in reliance on any[…]
other undertaking by the other Party not fully reflected in the terms of this Agreement”. This supports Lagerwey’s view. However, as said above, the obligations of the parties are not merely determined by the wording of a clause, and so too here regarding this entire agreement clause, the relevant circumstances must be taken into consideration, particularly the earlier statements and conduct of the parties (See: Netherlands Supreme Court, 15 April 2013, ECLI:NL:HR:2013:BY8101,
Lundiform/Mexx).
each of the Parties acknowledges and confirms that it does not enter into this Agreement in reliance on any[…]
other undertaking by the other Party not fully reflected in the terms of this Agreement”. This supports Lagerwey’s view. However, as said above, the obligations of the parties are not merely determined by the wording of a clause, and so too here regarding this entire agreement clause, the relevant circumstances must be taken into consideration, particularly the earlier statements and conduct of the parties (See: Netherlands Supreme Court, 15 April 2013, ECLI:NL:HR:2013:BY8101,
Lundiform/Mexx).
4.8.
This means that for determining the extent of the entire agreement clause, the Court will have to turn to whether Lagerwey agreed to provide the type certificate, as these two controversies – (i) whether or not Lagerwey agreed to provide a certificate and (ii) the scope of the entire agreement clause – are intertwined. If Lagerwey did not agree, then, of course, the entire agreement clause becomes irrelevant. However, if it were to be found that Lagerwey did agree to provide a certificate, then how and when such agreement was reached may be decisive for interpreting the scope of the entire agreement clause.
The reasons given by Meriç for its interpretation of Lagerwey’s obligations
4.9.
The party invoking certain legal consequences from an interpretation of an agreement has the burden of proof regarding the factual reasons that would justify such interpretation. Therefore, as Meriç argues that it follows from what they have agreed, that Lagerwey had the obligation to provide for the type certificate, Meriç has the burden of proof in respect of the facts that justify this understanding. The Court will therefore now deal with the reasons given by Meriç for its view that it was agreed that Lagerwey would provide the type certificate.
4.10.
Meriç has submitted an expert report stating that the sale of a WTG without a type certificate is contrary to good wind industry practice. This may be so, but in this case, it is common ground that Meriç knew that the WTGs were not type certified when it bought them. Such good wind industry practice therefore does not help here in determining Lagerwey’s obligations, as the issue at stake is not whether the WTGs should have been certified when sold – clearly, this was not required – but whether or not Lagerwey agreed to provide a type certificate later in time.
4.11.
Meriç refers to Article 6.1. b of the Sales Agreement where it provides for an obligation of Lagerwey to take care of “
all Legal Requirements[…]
for the execution of the Works”. However, the “Works” are defined in the Sales Agreement as meaning the works as specified in Annex 1. Obtaining a type certificate is not mentioned in that Annex and it is obvious that the “Works” relate to the WTGs (Lagerwey’s part of the deal) and not to providing energy to the Turkish grid (Meric’s responsibility) for which the certificate may have been needed.
all Legal Requirements[…]
for the execution of the Works”. However, the “Works” are defined in the Sales Agreement as meaning the works as specified in Annex 1. Obtaining a type certificate is not mentioned in that Annex and it is obvious that the “Works” relate to the WTGs (Lagerwey’s part of the deal) and not to providing energy to the Turkish grid (Meric’s responsibility) for which the certificate may have been needed.
4.12.
Meriç also refers to Article 6.1.e of the Sales Agreement mentioning an obligation of Lagerwey to take care of all permits, authorizations, licenses, approval and consents, necessary for the performance “
of its obligations”under the agreement. However, a type certificate may be necessary for obtaining permission to provide energy to the Turkish grid, but providing energy to the Turkish grid was not an obligation of Lagerwey.
of its obligations”under the agreement. However, a type certificate may be necessary for obtaining permission to provide energy to the Turkish grid, but providing energy to the Turkish grid was not an obligation of Lagerwey.
4.13.
Meriç finally refers to Article 6.1.f. of the Sales Agreement mentioning an obligation of Lagerwey to support Meriç with relevant technical documentation. However, when this clause was proposed by Meriç, Lagerwy asked Meriç what it meant, and Meriç’s explanation (see 2.4 above) mentioned officials eventually coming to inspect the WTGs against projects and specifications and that Lagerwey should then support Meriç, but it did not refer to any need for a type certificate. Thus, this clause does not entail that Lagerwey should have understood it to include an obligation to provide a type certificate.
The correspondence
4.14.
Meriç refers to the correspondence between the parties after signing the agreement. Meriç asserts that this clearly shows that Lagerwey understood and agreed to provide the type certificates or, in any event, that Meriç was entitled to believe so.
4.15.
The Court notes, that on 13 April 2015, Lagerwey sent certain technical documents to Meriç, including the DECS (but not a type certificate). Later, on 25 May 2015, [B] asked for type certificates. On 28 May 2015, Lagerwey sent to [B] the DECS again (but again he sent no type certificate). Then, only after a long interval – after it had filed an application with the Turkish Ministry – Meriç, on 12 October 2015, asked for type certificates for a second time. The same day, Lagerwey once more sent the DECS to Meriç (and again, he did not send a type certificate). Meriç then sent these DECS to the Turkish Ministry (see above under 2.7 – 2.13). The Court concludes that Meriç, each time, and all this time, received only the DECS, without making any objections or comments. If the type certificate, as it argues, was essential and needed in due course, a more urgent request from Meriç, actively insisting on a type certificate would have been expected. It is also difficult to accept Meriç’s argument that a type certificate was definitely required, in view of it having made its application with the Turkish Ministry without submitting a type certificate and even later by only submitting the DECS. This correspondence therefore does not support its arguments. To the contrary, it only suggests a half-hearted interest of Meriç in a type certificate and that Lagerwey believed, as it argues, that it did not need to provide a type certificate and that sending the DECS would be sufficient. The subsequent correspondence only shows that Lagerwey was prepared to provide Meriç with all the support that it could offer, including a type certificate if and when obtained, but nowhere does it entail an acceptance by Lagerwey of an obligation to provide a type certificate at any point in time. The correspondence therefore does not support Meriç’s views.
[B]’s letter dated 8 August 2013
4.16.
Meriç further asserts that [B], in a letter dated 8 August 2013, explicitly said that it would provide a type certificate in time. Meriç states that [B] sent a letter including the following (in an English translation provided to the Court):
“[…]
We want you to know that both type certificate and all kind of information and documents requested from us for Turkey electricity market regulatory board shall be pursued in time and full through our local company.”
We want you to know that both type certificate and all kind of information and documents requested from us for Turkey electricity market regulatory board shall be pursued in time and full through our local company.”
4.17.
Lagerwey denies the existence of this letter, and has stressed that such a letter would be inconsistent with all communication between the parties made by email. In addition, it argues that, given the uncertain but considerable amount of time it takes to get a type certificate, including the time that may be necessary for intermediate adjustments to the WTGs for legal and technical reasons, it would never have been able to give any assurance regarding obtaining a type certificate at any time. Lagerwey further argues that it would have linked such a far-reaching commitment to restrictive contractual conditions. Furthermore, Lagerwey states that in any event [B] (shareholder and board member of Lagerwey Turkey, being a separate legal entity) was not authorised to represent Lagerwey and to give such a commitment on its behalf. In this respect Lagerwey also argues that according to the letter, the type certificate would be provided by Lagerwey Turkey (“
pursued in time and full through our local company”), while Lagerwey Turkey would not have been able to obtain a type certificate, as it would have had to be obtained by the manufacturer, not being Lagerwey Turkey. If [B] did give any commitment, he did so on behalf of Lagerwey Turkey, not on behalf of Lagerwey, and Meriç was aware that [B] was not a representative of Lagerwey. Lagerwey also points out that there is no correspondence submitted between Lagerwey and Lagerwey Turkey that would support [B]’s power to bind Lagerwey.
pursued in time and full through our local company”), while Lagerwey Turkey would not have been able to obtain a type certificate, as it would have had to be obtained by the manufacturer, not being Lagerwey Turkey. If [B] did give any commitment, he did so on behalf of Lagerwey Turkey, not on behalf of Lagerwey, and Meriç was aware that [B] was not a representative of Lagerwey. Lagerwey also points out that there is no correspondence submitted between Lagerwey and Lagerwey Turkey that would support [B]’s power to bind Lagerwey.
4.18.
To the extent the letter – if indeed sent by [B] – created a prior commitment by Lagerwey, the subsequently agreed entire agreement clause prevents Meriç from relying on it. On 8 August 2013, when the letter was allegedly sent, the parties were corresponding in relation to a licence agreement. They only started to discuss the Sales Agreement by 4 September 2013. An entire agreement clause typically serves to exclude possible consequences from earlier dealings regarding matters not mentioned, the more so when these dealings were not directly related to the agreement concerned. Meriç, as a professional party, could not reasonably have expected, contrary to the clear wording of the entire agreement clause, that such commitment given
many weeks beforeand
in another context, would not be covered. However, if it can be established that [B] did indeed send this letter, such could nevertheless be relevant for establishing whether Lagerwey agreed to provide a type certificate, not by virtue of [B]’s alleged letter as such, but for reason of supporting Meriç’s interpretation of Lagerwey’s obligations within the framework of possible other supporting circumstances. This is because the entire agreement clause may not be effective if Meriç could reasonably believe, in view of all circumstances, that Lagerwey would provide the type certificate and that the entire agreement clause would not apply to this obligation. The Court will therefore allow Meriç to prove that [B] sent the letter dated 8 August 2013. As to what extent [B]’s letter – if indeed sent – can be attributed to Lagerwey, the Court will decide after Meriç provided its evidence, in connection with all the other evidence.
many weeks beforeand
in another context, would not be covered. However, if it can be established that [B] did indeed send this letter, such could nevertheless be relevant for establishing whether Lagerwey agreed to provide a type certificate, not by virtue of [B]’s alleged letter as such, but for reason of supporting Meriç’s interpretation of Lagerwey’s obligations within the framework of possible other supporting circumstances. This is because the entire agreement clause may not be effective if Meriç could reasonably believe, in view of all circumstances, that Lagerwey would provide the type certificate and that the entire agreement clause would not apply to this obligation. The Court will therefore allow Meriç to prove that [B] sent the letter dated 8 August 2013. As to what extent [B]’s letter – if indeed sent – can be attributed to Lagerwey, the Court will decide after Meriç provided its evidence, in connection with all the other evidence.
Negotiations
4.19.
Meriç asserts that the need for a type certificate was expressly discussed in a meeting before the signing of the agreement. Meriç’s in-house counsel [H] states in his written statement:
“
During the negotiations, we discussed that it was a necessity for us that Lagerwey’s wind turbines were type certified several times. Mr. [A] for example raised this in a meeting on September 12, 2013, which took place in Barneveld. In that meeting, the Lagerwey representatives present at that meeting — Mr. Ard[the Court understands: Ard de Poot]
and Mr. Aart [D] — both informed us that the turbines consisted of such new technology that they were not type certified yet but ensured us they were working on it. As a result of this remark, Mr. [A] repeatedly asked for the type certificate and emphasized that the wind turbines could not be installed without the type certificate. The representatives of Lagerwey continuously replied that they would certainly obtain the certificate and that they were already working on it.”
During the negotiations, we discussed that it was a necessity for us that Lagerwey’s wind turbines were type certified several times. Mr. [A] for example raised this in a meeting on September 12, 2013, which took place in Barneveld. In that meeting, the Lagerwey representatives present at that meeting — Mr. Ard[the Court understands: Ard de Poot]
and Mr. Aart [D] — both informed us that the turbines consisted of such new technology that they were not type certified yet but ensured us they were working on it. As a result of this remark, Mr. [A] repeatedly asked for the type certificate and emphasized that the wind turbines could not be installed without the type certificate. The representatives of Lagerwey continuously replied that they would certainly obtain the certificate and that they were already working on it.”
4.20.
Lagerwey disputes this. According to Lagerwey, Meriç never asked any questions in this respect, and that it was well aware that the new WTG model was not yet type certified. Lagerwey states that it had no reason to believe that Meriç wanted, let alone needed, to receive the type certificate at any moment in time.
4.21.
If it can be established that at a meeting just before signing the agreement, the need for a type certificate was discussed and that Lagerwey assured Meriç that it would obtain such certificate and that it was working on it, that would be relevant for determining Lagerwey’s obligations. Depending on what exactly has been said, and by whom, it could be that Meriç was reasonably entitled to expect that: (i) Lagerwey would provide a type certificate, notwithstanding such an obligation not being mentioned in the agreement and (ii) the entire agreement clause does not relate to such a
recentcommitment given
within the contextof the agreement. It should be noted, however, that such an obligation of Lagerwey would only be a basis for Meriç’s claims if it entails that the type certificate would be provided no later than necessary for obtaining the governmental permit in time, as not getting the certificates in time was Meriç’s reason for terminating or suspending the Sales Agreement.
recentcommitment given
within the contextof the agreement. It should be noted, however, that such an obligation of Lagerwey would only be a basis for Meriç’s claims if it entails that the type certificate would be provided no later than necessary for obtaining the governmental permit in time, as not getting the certificates in time was Meriç’s reason for terminating or suspending the Sales Agreement.
4.22.
The Court will therefore also allow Meriç to prove that the parties in a meeting prior to signing the agreement discussed the need for a type certificate and that Lagerwey then gave an assurance as mentioned above to Meriç.
4.23.
If Meriç fails to provide the relevant evidence, the Court will decide that Lagerwey had no obligation to provide a type certificate and dismiss Meriç’s claims. Furthermore, the Court will rule that Meriç’s termination or suspension of the Sales Agreement was unjustified and decide on Lagerwey’s claims. As to the VAT and the costs of storage and transport, and as to the loss of profit claimed by Lagerwey, these may require further information to be provided by the parties, and possibly the appointment of an independent expert witness.
4.24.
However, if Meriç succeeds in providing the relevant evidence, the Court will determine by interpretation, depending on what exactly has been obtained as evidence, (i) whether Lagerwey had an obligation to provide for a type certificate in time, taking into consideration Lagerwey’s defence that it is not to blame for any delay caused by Meriç in providing the letter of credit, and (ii) whether the entire agreement clause prevents invoking such obligation.
4.25.
If the Court then finds that the termination or suspension of the agreement by Meriç was justified, the Court will decide on Meriç’s claims. As to Meriç’s claim for damages, the Court may decide not to have these determined in separate proceedings as requested by Meriç, and in this respect too, may require further information to be provided by the parties, and possibly the appointment of an independent expert witness.
4.26.
The Court assumes that the above may be useful for the parties in discussing an amicable settlement. Should they not succeed, the Court would be available, before and separate from any possible upcoming witness hearings, to organise a hearing for purposes of facilitating a possible settlement, should the parties consider such to be opportune.
5.The decision
The Court:
5.1.
allows Meriç to prove:
(i) that [B] sent the letter dated 8 August 2013, and
(ii) that the parties in a meeting prior to the Sales Agreement discussed the need for a type certificate and that Lagerwey then gave an assurance that it would obtain a type certificate and that it was working on it;
5.2.
decides that if Meriç wishes to provide such evidence by means of witnesses, a hearing will be held before Judge D.J. Oranje as delegate judge in appeal appointed hereby, in the Court at the IJdok 20 in Amsterdam, the date and time to be determined later;
5.3.
decides that the parties shall inform the Court of their availability and of the availability of the witnesses in October and November 2024, within three weeks from the date of this judgment;
5.4.
stays all other decisions.
Done by D.J. Oranje, P.M. Arnoldus-Smit and P.F.G.T. Hofmeijer-Rutten, appeal judges, assisted by E.J. Van Veelen, Clerk of the Court.
Issued in public on 6 August 2024.
APPROVED FOR DISTRIBUTION IN eNCC
SIGNATURE PAGE 1 OF 2
D.J. ORANJE
(PRESIDING JUDGE)
SIGNATURE PAGE 2 OF 2
(CLERK OF THE COURT)