3.2 Comments on Dutch law
With regard to jurisdiction for the claim against the parent company, it was the clear starting point of the court that there was jurisdiction under art. 2(1) in the (former) Brussels I regime.
However, to some extent the court was forced to address the merits of the case and the likelihood of the success of the claim against the parent company even though this had not been brought up by the parent company itself in an attempt to avoid jurisdiction for the claim in the Netherlands and although jurisdiction for the claim against the parent company was not disputed. The reason for this is that there was only jurisdiction for the claim against the subsidiary if it was considered efficient to bring this claim together with the claim against the parent company and the court found that it could not be considered efficient to allow for the subsidiary’s claim if it was obvious that the claim against the parent company would fail. In this way, a trying of the merits of the case was brought into the case “through the back door”. It is not clear whether the court found that the claim against the parent company could also be dismissed if it was obvious that it would fail. Thus, the court used the formulation “cannot be allowed”, which could refer to either dismissal or rejection. Regardless of this, it is worth noticing that the court did not go deeply into the question of whether it was likely that the claimant would succeed with the claim against the parent company (the merits of this claim).