The Bottom Line
- Unenforceable Clauses Carry High Costs: Using potentially unfair clauses in your B2C contracts, such as automatic rent surcharges, can lead to a court voiding the clause. This may jeopardize your entire financial claim, even if the other party does not defend the case.
- Proactive Judicial Scrutiny is the New Norm: Dutch courts are actively reviewing consumer contracts for fairness on their own initiative, as required by EU law. Relying on outdated or aggressive template clauses is a significant compliance and financial risk.
- The Burden of Proof is on You: If a contract term is deemed unfair, the responsibility falls entirely on the business to provide a flawless and transparent recalculation of its claim. As this case shows, submitting incorrect or confusing figures can lead to the dismissal of the entire case.
The Details
This case began as a seemingly straightforward rental dispute where a landlord, ST JUR EIG CERTITUDO AMSTERDAM CITY II, sued a tenant for rent arrears. However, the Amsterdam District Court turned the tables by applying its duty under the EU Unfair Contract Terms Directive (93/13/EEC). The court proactively reviewed the rental agreement and identified an unfair term: a clause that allowed the landlord to increase the annual rent by the Consumer Price Index (CPI) plus an additional surcharge. The court declared this surcharge clause void, effectively removing it from the contract.
Following this initial decision, the court instructed the landlord to recalculate and resubmit the claim for rent arrears based only on the legally permissible CPI increases that were actually applied throughout the tenancy. In response, the landlord submitted new documentation. However, the court sharply criticized the new submission, labelling the calculations “incorrect” and the conclusions “incomprehensible.” The landlord not only used the wrong base year for the indexation but also submitted figures that, upon the court’s own inspection, clearly showed that surcharges above the CPI had indeed been applied—directly contradicting the landlord’s argument.
Exhibiting clear frustration with the plaintiff’s failure to comply with its instructions, the court has granted the landlord one final chance to submit a clear, correct, and properly substantiated calculation of the rent owed. The judge issued a stern warning: if the landlord again provides an “incomplete or incomprehensible” breakdown, the court may dismiss the entire claim for arrears. This interim ruling is a powerful signal that courts will not do the work for plaintiffs with flawed contracts. Businesses must ensure their claims are built on solid, legally compliant foundations or risk walking away with nothing.
Source
Source: Rechtbank Amsterdam
