ECLI:NL:RBAMS:2022:3747

Uitspraak

judgment

AMSTERDAM DISTRICT COURT

Netherlands Commercial Court

NCC District Court

Case reference number: NCC 21/004 (C/13/667529)

Judgment

29 June 2022

In the matter of:

the company incorporated under foreign law

[X] A.Ş.,

having its registered office and principal place of business at [place] , Türkiye,

claimant in the original action, defendant in the counterclaim,

lawyers: dr. C. Jeloschek and S.A.K. d’Azevedo (Kennedy Van der Laan),

versus

the private company with limited liability

[Y] B.V.,

having its registered office and principal place of business at Barneveld, the Netherlands,

defendant in the original action, claimant in the counterclaim,

lawyers: E.M. Tjon-En-Fa and W. Kroeze (Bird & Bird).

The parties are referred to below as “ [X] ” and “ [Y] ” respectively.

Procedural history

1.1.
[X] submitted a writ of summons on 26 March 2021. The exhibits referred to in the writ of summons were submitted separately on 29 March 2021.

1.2.On 11 August 2021, [Y] filed its statement of defence and counterclaim, with exhibits.

1.3.
[X] filed its statement of defence in the counterclaim on 1 November 2021. The exhibits were submitted separately on the same date.

1.4.
[Y] submitted additional exhibits on 16 November 2021. [X] submitted additional exhibits on 19 November 2021.

1.5.The hearing was held on 1 December 2021. The lawyers pleaded their cases. Their pleading notes were submitted in eNCC in advance of the hearing. A court record of the hearing was made.

1.6.On 12 January 2022, [Y] submitted a further written submission and amendment of the counterclaim with exhibits, in response to the Court’s request at the hearing to provide more clarity with regard to [Y] ‘s counterclaims IV, V, VI and VII. On 23 February 2022, [X] filed its statement of response to the further submission in the counterclaim. The exhibits were submitted separately on the same date. On 23 March 2022, [Y] filed its response to the exhibits submitted by [X] . [Y] also submitted exhibits of its own.

1.7.On 20 April 2022, [Y] filed its further written submission and amendment of the counterclaim with exhibits, as requested by [Y] and as was granted by the Court. On 18 May 2022, [X] filed its statement of response to the further submission in the counterclaim.

1.8.Subsequently, the date for judgment of the case was set for today.

The facts

2.1.
[X] is a Turkish company that, inter alia, operates wind power plants in Türkiye. [A] (“ [A] ”) is CEO and shareholder of [X] . [A] owns several energy related businesses in Türkiye and in Germany, including [BV 1] ( [BV 1] ), a German manufacturer of wind turbines.

2.2.
[Y] is a Dutch company that develops, manufactures and constructs wind turbines. In October 2010, [Y] established a local company in Türkiye called: [Y] Enerji Sanayi Ve Ticaret Anonim Sirketi (“ [Y] Turkey”). [Y] Turkey was subsequently liquidated.

2.3.In 2012, [X] was planning on constructing a wind power plant at a site near [..] in Türkiye (the “ [..] Project”). At the same time, [Y] intended to expand its reach into Türkiye. After extensive negotiations, [X] and [Y] signed a Sales Agreement and a related Full Service Agreement on 12 September 2013. Under the Sales Agreement, [X] purchased two L100-2.5 MW Wind Turbine Generators (“WTGs”), at the time [Y] ‘s newest model of WTG, for the [..] Project. The parties 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 several instalments relating to the delivery of the various components of the WTGs, each referred to by the parties as “Milestones”. In total, [X] had to pay in eight Milestones to [Y] . On signing the Agreement, the first instalment of 30% of the purchase price was due. [X] had to provide [Y] with an irrevocable letter of credit (the “L/C”) for the remaining seven Milestones. Furthermore and as far as relevant for the dispute at hand, the Sales Agreement contains the following considerations and provisions:

“(…)

Employer [the Court: [X] ] 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 [..] site (…)

Contractor [the Court: [Y] ] has offered to design, produce, deliver, install and commission the WTG(‘s) (…) at the Site (…)

(…)

Article 3 – Conditions Precedent

The Conditions Precedent include:

a. Employer has transferred to Contractor the advanced payment as indicated in article (…) at or before the 18th of September 2013;

b. Employer has provided to Contractor the payment security as indicated in article (…) at or before the 30th of September 2013;

(…)

b. Terminate this Agreement or revise the Contract Price. (…)

In the event of termination of this Agreement based on Article 3.2, Parties will bear its own costs and loss of profits or consequential loss which the termination entails.

(…)

Article 5 – Contract Documents

(…)

5.2.
In case of inconsistencies between this Agreement and the Full Service Agreement (Annex 18 of this Agreement) the Full Service Agreement will prevail as soon as it has come into effect (directly after the Take Over certificate has been signed)(…)

Article 6 – Obligations of Contractor

The Contractor undertakes:

(…)

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

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

(…)

(…) In the event the non-compliance 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

Contractor represents and warrants to Employer:

(…)

b. To comply with all applicable Legal Requirements known and in force at the moment this Agreements come into effect (Commencement Date);

(…)

(…)

Reservation of title

All materials delivered on the Site by or on behalf of the Contractor under this Agreement remain the property of the Contractor until for these materials has been paid for in full by the Employer to the Contractor, until that moment Contractor will exercise the retention right.

(…)

Article 21 – Indemnification and Liability

(…)

Liquidated damages

In no case shall either Party be liable to the other Party for any direct or consequential losses or damages unless such is explicitly mentioned in any part of this Agreement.

(…)

Article 28 – Miscellaneous

(…)

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 29 – Governing law and arbitration

Governing law

This Agreement shall be governed by and construed in all respects in accordance with the laws of the Netherlands.

(…).”

2.4.In addition, the Full Service Agreement states the following:

Article 1 – Definitions and Interpretations

(…)

“Commencement Date”
means either the date of this Agreement as stipulated on page 1 of this Agreement or the date of signing of the Final Acceptance Certificate as defined in the Sales Agreement, whichever is the latest.

(…)

Article 11 – Liability

Within the statutory framework of the applicable law a Party shall be liable for and shall indemnify the

other Party against all losses, expenses and claims in respect of any loss of or damage to physical property, death or personal injury to the extent caused by a negligent act or omission of that Party or the personnel or other employees of that Party during the term of this Agreement. Consequential or incidental damages or losses shall in any case be excluded.

(…).”

One of [Y] Turkey’s shareholders and board members was [B] (“ [B] ”). In the past, [B] was [Y] Turkey’s General Manager. Prior to the conclusion of the Sales Agreement and the Full Service Agreement, [B] wrote to

[C] (“ [C] ”), [X] ‘s General Director, in a letter dated 8 August 2013, as follows:

“(…)

It is the priority for [Y] NL to expand into Turkey market and we are pleased to announce that we have established a company with a title [Y] Enerji Sanayi ve Ticaret A.S. (…). We would like to inform you that [Y] NL is the largest shareholder in the company of senior management with [Y] NL corporate identity quickly following up all technical and bureaucratic procedures to be done in Turkey market. 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.

(…).”

2.6.A “Type Certificate” is the accreditation done by a third party confirming that the WTGs meet the relevant standards and checks. In order to obtain a Type Certificate, the WTGs need 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.

2.7.
[X] 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 [X] provided [Y] with the L/C 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.

On 13 April 2015, [Y] sent an overview of relevant technical documents to [X] , 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. On 25 May 2015, [B] forwarded the following e-mail from [D] (an electrical engineer hired by [X] ) to [E]

(“ [E] ”), the Chief Technology Officer at [Y] , with the request to provide the necessary information listed in the e-mail:

“Dear [B] ,

I listed below necessary documents and informations about electrical and constructional works:

1.) For the wind turbine foundation: it must be given detailed dimensional drawings of turbine (…)

2.) Type test certificates (necessary for ETKB accept files)

(…).”

2.9.
[F] (“ [F] ”), a senior project manager at [Y] , replied a few days later (on 28 May 2015) with answers to all of the questions. With regard to the question about ‘type test certificates’, [F] wrote as follows:

“Please find the Design Evaluation Conformity Statement which we hold for this turbine.”

2.10.In response to an e-mail of [F] regarding the increase of the contract price, [C] wrote to [F] by e-mail of 9 July 2015 as follows:

“(…)

You are asking for a delay cost of 51.500,00 €.

Me, as the responsible for the Turkey area was not informed about (this) due to operational reasons from my CEO Mr. [A] , but (the confirmation of the price increase) was signed and send to your side.

(…)

As I can see from my side we made a down payment of 1.484.000,- € on the 2cd October 2013, I would like to remind you that your Turbine was during this period even
without
a certificate.

(…).”

2.11.On 29 September 2015, [X] filed an application to obtain approval of the Ministry of Energy and Natural Resources (the “Ministry”) for the [..] Project. On 5 October 2015, [X] received an e-mail from the Ministry stating that the application was incomplete on (15) different topics, the requirement of a Type Certificate being one of them.

2.12.By e-mail dated 12 October 2015, [X] wrote to [Y] as follows:

“(…)

We kindly request the Type Certificate of the WTGs. It is requested for governmental project approval purposes.

(…).”

2.13.On the same day, [Y] responded as follows:

“(…)

Please find attached the Design Assessment Conformity Statement by Germanischer Lloyd which we hold for this turbine.

(…).”

[X] then submitted the DECS to the Ministry.

On 12 November 2015, [F] [G] (“ [G] ”), General Manager of [BV 2] , one of [X] ‘s subcontractors, whether the anchors had to be shipped to the site directly or to a warehouse nearby. By e-mail dated

13 November 2015, [G] answered that the [..] site did not yet have access roads. Therefore, the anchors had to be shipped to the warehouse. On 23 December 2015, [F] asked for a new status update regarding the progress of the [..] Project and final planning. [F] , inter alia, wanted to know when the site would be ready to receive the turbine components and the main crane. [F] also mentioned that the blades would arrive in Türkiye on 17 January 2016. By e-mail dated 25 December 2015, [G] answered as follows:

“(…)

We have assumed that the [Y] 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 response of 29 December 2015, [F] expressed that [Y] would continue to provide [X] with all the support that [Y] could offer in that respect. Furthermore, [F] responded that a Type Certificate could not be obtained on short notice. By e-mail of the same date, [G] 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 [X] 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, [F] wrote to [C] that [Y] 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 [F] also remarked that [X] would have to pay for the components that were to be stored. On the same day, [C] responded:

“(…)

I remind you the advance payment of 1.484.000 euro were made after the communication with [Y] Turkey, [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, [E] wrote to [C] as follows:

“(…)

Contractor [the court: [Y] ] 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 [the Court: [X] ] 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.
[C] wrote to [E] , by e-mail dated 14 January 2016, 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 [..] project, we have decided not to use [Y] 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 [Y] , therefore our Lawyers will get in touch with you to discuss the legal part. All parts which has produced due to [..] project, we ask you to deliver to [..] storehouse. (…).”

2.19.By e-mail dated 19 January 2016, [X] wrote to [Y] as follows:

“(…)

Also, [A] [the Court: [A] ] asks you not to take any actions that will lead to additional costs (e.g. shipment of generators) without his prior consent for now. It seems the lack of type certification might turn out to be a serious issue for the realization of the [..] project. However, I am told we have acquired two new projects in Germany that are RTB and might be a good fit for your WTGs.

(…).”

2.20.At some point, [X] used a different type of WTGs of [BV 1] for the [..] Project.

2.21.On 17 February 2016, [Y] was informed that [X] was planning on transporting the rotor blades, which had already been shipped to Türkiye and were stored at a facility in a port, to another location. [Y] objected to this, as it had reserved its title and ownership until all relevant invoices had been paid in full. By e-mail dated 17 February 2016, [Y] wrote to [X] , as follows:

“(…)

Please note that the blades are property of [Y] . The Employer is
not
allowed to ship the blades to another location. [Y] will arrange transport of the blades after consultation with [H] .

(…).”

2.22.By e-mail dated 18 February 2016, [X] replied as follows:

“(…)

And also we paid for the blades around 1 million Euro, so I guess it is in our hands to decide what we want to do with them. And. Mr. [A] wanted this transportation.

(…).”

2.23.On 20 April 2016, [Y] sent [X] a default notice. In this default notice [Y] wrote that (i) it was under no obligation to provide a Type Certificate to [X] , (ii) [X] was in default of its obligations under the Sales Agreement (by invoking suspension or termination of the Sales Agreement and not enabling [Y] to fulfil its obligations under the Sales Agreement), and (iii) [Y] would be entitled to draw the remaining Milestone payments under the L/C as a consequence of [X] being in default. In this regard, [Y] also wrote that all other components were produced and ready for transportation to the site. On 17 May 2016, [Y] sent another letter to [X] , in which it stated that [X] had not remedied the defaults mentioned in the default notice, and that as a consequence, [Y] would be invoking the L/C.

2.24.In June 2016, [Y] drew an amount of EUR 1,341,470.00 under the L/C for Milestones v and vi of the Sales Agreement.

2.25.At the end of 2016, [Y] used the generators that it had manufactured for [X] for a different project.

2.26.On 13 July 2017, [Y] obtained the Type Certificate for the WTG.

2.27.In 2018, [Y] became a part of Enercon GmbH, a market leader in the field of wind energy. In June 2018, the parties started to renegotiate the Sales Agreement in an attempt to find a new purpose for the wind turbines. By letter of 12 June 2018, [X] wrote to [Y] as follows:

“(…)

As you know we bought two wind turbines (…) with a contract dated 12-09-2013.

The turbines are stored partially in Turkey (blades, towers) and Netherlands (nacelle, hub, generator, converter – platform and controller).

As the turbines could not be used in the project in Turkey we are intending to use the turbines now in our project in Georgia. (…)

Our intention is to realize the project in short time and for this to start construction as well as transportation activities in short time.

For discussing the details I would like to visit you as soon as possible.

(…).”

2.28.By e-mail dated 21 November 2018, [X] wrote to [Y] as follows:

“(…)

Could you start sending some documents about transportation (dimensions, handling) of all parts as well a installation tools (if any) and possibly about standard foundation design, so that I can use them for the ongoing project preparation?

(…)”

[Y] responded that it would not perform any work until an amended Sales Agreement was in place.

2.29.By e-mail dated 13 September 2019, [X] wrote to [Y] as follows:

“(…)

Since over one year we try to find a solution, for all my suggestions I every time got the same short answer: No.

We paid for two wind turbines that are not in our possession, therefore we ask to send them, and as we can’t find any amendment of our agreement, we have to get the turbines to Turkey as based on the agreement.

(…).”

The parties did not reach an agreement.

2.30.On 25 November 2019, [X] – by letter from its lawyer – terminated the Sales Agreement based on [Y] ‘s failure to timely deliver the wind turbines with the required Type Certificate. Furthermore, [X] demanded repayment of the Milestones paid, an amount of EUR 4,643,190.00 in total. [X] also demanded that [Y] inform [X] when and how it would collect the components that had already been shipped to Türkiye. [X] also stated that it reserved its right to claim damages, which [X] had estimated to be EUR 2,632,191.00.

2.31.By letter of its lawyer of 19 December 2019, [Y] replied that the Agreements do not contain any obligation for [Y] to obtain a Type Certificate. [Y] ‘s lawyer also pointed out that [X] was the party which was in breach of the Sales Agreement, as it had not allowed [Y] to fulfil its obligations under the Sales Agreement. Furthermore, [Y] ‘s lawyer stated that as a result of [X] being in default, [Y] suffered (and continued to suffer) damages. [Y] ‘s lawyer also stated that the termination of the Sales Agreement by [X] was not legitimate and thus held no effect.

2.32.By letter of its lawyer of 18 March 2020, [X] denied being in default since it had been evident from the beginning that it was [Y] ‘s obligation to provide a Type Certificate. Hence, [Y] was in default of its obligations under the Sales Agreement, not [X] . Furthermore, [X] ‘s lawyer stated that the obligation to provide [X] with a Type Certificate also follows from a Turkish Project Regulation for Power Plants (the “Regulation”). [X] ‘s lawyer further stated that the remaining Milestones (vii and viii) were not due and that [X] was not liable for the storage costs incurred by [Y] . Lastly, [X] ‘s lawyer offered to refer the dispute to the Netherlands Commercial Court, even though the parties had previously agreed to arbitration under the rules and administration of the International Chamber of Commerce.

2.33.On 24 March 2020, [Y] ‘s lawyer accepted the offer to refer the dispute to the Netherlands Commercial Court. On 14 April 2020, [Y] ‘s lawyer responded that the research performed by [Y] ‘s Turkish lawyer showed that at the time the Agreements were signed, the version of the Regulation that was in force at that time did not contain any reference to a requirement for a Type Certificate. [Y] ‘s lawyer also stated that the subsequent versions of the Regulation did contain a reference to a requirement for a Type Certificate, but only as one of four [the Court understands five] different kinds of documents that can be used in order to obtain the required project approval. Furthermore, [Y] ‘s lawyer further substantiated [Y] ‘s claim and counterclaim against [X] .

2.34.The Turkish law firm BTS Legal (“BTS”) drafted a legal opinion at the request of [Y] , dated 10 August 2021. In this legal opinion, BTS concluded that the grounds that [X] provided for using another manufacturer’s wind turbines have no basis in Turkish law.

2.35.In a witness statement of 21 February 2022, [I] (“ [I] ”), a commercial employee of [BV 1] , wrote as follows:

“(…)

In January 2016, Mr. [A] and the CEO of [X] , Mr. [C] discussed the storage of certain components which were purchased by [X] from the Dutch company [Y] however, could not be used for [X] ‘s project in Turkey. Mr. [A] and Mr. [C] agreed to store these components (…) in the building which was previously owned by Prokon and therefore known as ” [..] ” in our environment. However, these components were never delivered to our storage place.

If these components would have been delivered to our storage facilities [BV 1] would be able to store all components and would not have charged any storage costs, irrelevant of the storage duration, as Mr. [A] owns both companies, [BV 1] and [X] . (…).”

The claim

3.1.
[X] requests that the Court, by means of a judgment that insofar as possible is provisionally enforceable notwithstanding appeal:

I. declare that [Y] has breached the Sales Agreement by failing to obtain and provide on time a Type Certificate for the WTGs;

II. declare that [X] was entitled to suspend performance of the Sales Agreement as a result of the aforementioned breach of contract by [Y] ;

III. declare that [Y] 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;

IV. declare that [X] was entitled to terminate the Agreements as a result of [Y] ‘s contractual breaches;

V. order [Y] to repay [X] the payment of Milestones i to vi inclusive – 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;

VI. order [Y] to pay [X] an amount of EUR 9,550.00 consisting of extrajudicial collection costs;

VII. declare that [Y] is liable for the damage caused by its contractual breaches;

VIII. order [Y] to pay [X] damages as yet to be determined in follow-up proceedings and to refer such determination to proceedings to establish the quantum of damages; and

IX. order [Y] to pay the costs of these proceedings, including the subsequent costs amounting to EUR 131.00 without service by a bailiff of the decision or EUR 199.00 in the event of such service, respectively, if and to the extent that [Y] 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.
[Y] opposes the claim and requests that the Court – after amendment of claim – order [X] to pay the costs of these proceedings plus statutory interest as from three days after judgment has been given onwards.

3.3.Insofar as relevant, the parties’ arguments will be discussed in more detail below.

The counterclaim

4.1.
[Y] , after a number of amendments of claim, eventually requests that the Court by means of a judgment that insofar as possible is provisionally enforceable:

( i) declare that [Y] did not breach any of its obligations under the Sales Agreement;

(ii) declare that [X] ‘s attempted termination of the Sales Agreement has sorted no effect;

(iii) 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;

(iv) order [X] 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 [Y] 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 [X] fails to do so thereafter;

( v) declare that [X] is liable for the damage that [Y] suffered as a result of [X] breaching the Sales Agreement and to order [X] to pay [Y] 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 [Y] , 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 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 [X] accepts delivery of the WTG components: n

Ref. para 4.1 (Amendment of [Y] ’s counterclaim) of [Y] ’s submission, dated 18 May 2022.

vi. order [X] to pay the costs of these proceedings, plus statutory interest as from three days after the judgment has been given onwards.

4.2.
[X] opposes the counterclaim and requests the Court to order [Y] to pay the costs of the proceedings in connection with the counterclaim.

4.3.Insofar as relevant, the parties’ arguments will be discussed in more detail below.

Discussion

5.1.Given the close connection between the claim of [X] and the counterclaim of [Y] , the Court will assess both claims simultaneously.

Jurisdiction of the NCC and applicable law

5.2.Both parties explicitly waived their right under the Sales Agreement to have the case referred to arbitration under the Rules of Conciliation and Arbitration of the International Chamber of Commerce (clause 29.2 of the Sales Agreement). By exchange of lawyers’ letters of 18 and 24 March 2020, [X] and [Y] both designated the Netherlands Commercial Court in Amsterdam as the forum to hear their case (choice of forum clause). This implies that the Amsterdam District Court has jurisdiction 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). On the basis of the lawyers’ letters mentioned above and considering the fact that all documents submitted in these proceedings have been written in English, the Court understands that the parties have also intended explicitly that these proceedings be held in English before the NCC. All other requirements for the NCC to have jurisdiction in this case, mentioned in Article 30r of the Dutch Code of Civil Procedure (DCCP) and in Article 1.3.1 of the NCC Rules of Procedure (NCCR), are equally met.

5.3.Clause 29.1 of the Sales Agreement stipulates that the agreement is governed by Dutch law. Furthermore, it is clear from the parties’ arguments in these proceedings that they consider Dutch law to be applicable. Hence, Dutch law will be applied. At the hearing the parties, for the avoidance of any doubt in that respect, agreed to exclude the applicability of the Vienna Sales Convention (“CISG”). Article 6 CISG allows the parties to exclude the application of the CISG.

Type Certificate

5.4.The key issue that is in debate between the parties is whether or not obtaining and providing [X] with a Type Certificate for the WTGs was a contractual obligation of [Y] under the Sales Agreement. [X] alleges that [Y] had the obligation to provide a Type Certificate to [X] under the Sales Agreement. According to [X] , since the two WTGs concerned a new model that had never been sold before nor had been used in Türkiye before, it requested the provision of a Type Certificate by [Y] to demonstrate that the WTGs had been properly tested and did meet all requirements. Again according to [X] , [Y] provided an express guarantee as part of the negotiations prior to the conclusion of the Agreements, to provide the Type Certificate in January 2016, since [X] would otherwise lose its licence to sell the energy generated by the WTGs. More specifically, [X] argues that the obligation to provide a Type Certificate follows from (i) the precontractual guarantee given by [B] in his letter dated 8 August 2013, and (ii) from the text of the Sales Agreement and Turkish law. In this regard, [X] argues that the text of Article 6.1 of the Sales Agreement shows that it is [Y] ‘s responsibility to obtain documents such as a Type Certificate. Furthermore, Article 12(7) of the Regulation states that obtaining a Type Certificate is the manufacturer’s responsibility. In this regard [X] reasons that, although this version of the Regulation was not in force yet when the Sales Agreement was concluded, it applies nonetheless since the [..] Project had been delayed. According to [X] , [Y] was obliged to comply with the legislation in force at the time the Sales Agreement came into force, which was in 2015. [X] also states that the Type Certificate was not only needed for regulatory purposes, but also for obtaining financing for the entire [..] Project. Furthermore, [X] argues that [Y] ‘s obligation to provide a Type Certificate under the contract had also been confirmed by the parties’ conduct after the conclusion of the Agreements. On 29 December 2015 and 5 January 2016, however, [Y] explicitly communicated to [X] that it would not be able to obtain the Type Certificate on short notice. As a result, [Y] has been in default ever since, according to [X] . Therefore, [X] is of the opinion that it was allowed to suspend the Sales Agreement in January 2016 since the WTGs could not be used in the [..] Project as envisaged in the Sales Agreement. In this regard, [X] also argues that the application for the licence for the [..] Project had been denied by the Turkish Ministry of Power and Natural Resources on 25 January 2016. [X] thus had to look for an alternative supplier instead, which it found in [BV 1] . The default could not be remedied by the late delivery of the Type Certificate by [Y] in 2017. Taking all of this into account, [X] maintains that it was entitled to terminate the Agreements on 25 November 2019.

5.5.
[Y] argues that it has never agreed or committed itself to provide [X] with a Type Certificate, let alone to do so in a(n) (unspecified) “timely manner”. [Y] also disputes the alleged need of [X] for a Type Certificate prior to April 2016 in order to proceed with the [..] Project, and consequently, to not lose its project licence. According to [Y] , a Type Certificate was not required under Turkish law. A DECS (which [Y] has provided to [X] on numerous occasions) sufficed, which has been confirmed in the legal opinion of BTS (see sub 2.34). In this regard, [Y] also states that [X] has not submitted a document evidencing that the project approval based on [Y] ‘s WTGs was denied. Furthermore, [Y] argues that the alleged obligation for [Y] to provide [X] with a Type Certificate is not specified in the Agreements. In this respect it is a decisive element that the Sales Agreement does contain an entire agreement clause, which explicitly states that neither party can rely on any warranty (i.e. ‘guarantee’) that is not reflected in the Sales Agreement. Furthermore, [Y] argues that it is rather striking that [X] has to rely solely on a letter that was allegedly sent by [B] , then manager of [Y] Turkey, to [C] on 8 August 2013. [Y] explicitly denies that [B] sent the letter and/or that [Y] in this letter provided any guarantee that it would provide [X] with a Type Certificate. As far as other correspondence between the parties is concerned, [Y] states that [X] falsely claims that it has stressed the alleged necessity of a Type Certificate numerous times prior to December 2015. Not every reference to a “certificate” or “certification” relates to a Type Certificate. Therefore, [Y] argues that it did not breach any of its obligations under the Sales Agreement in that respect. On the other hand, [Y] states that [X] itself has repeatedly been in default on numerous occasions, starting even shortly after the Agreements were concluded. The most important breach being [X] ‘s refusal to take delivery of the generators and other parts of the WTGs. Such (creditor’s) default stands in the way of [X] successfully invoking any alleged default on [Y] ‘s side, according to [Y] .

5.6.The Court will dismiss the claim that [Y] has breached the Sales Agreement by failing to obtain and provide a Type Certificate for the WTGs in a timely manner, based on the following considerations. As a starting point for these considerations the Court would like to emphasise that the party relying on a certain interpretation of a contract or provisions for it to invoke legal consequences based on that interpretation has the duty to substantiate its position sufficiently and has, if necessary, the burden of proof (standard case law, see most recently Dutch Supreme Court judgment of 10 June 2022, ECLI:NL:HR:2022:852, para. 3.1.2, end).

The Sales Agreement and the entire agreement clause

5.7.
[X] firstly argues that the obligation to provide a Type Certificate follows from a precontractual guarantee given by [B] in his letter dated 8 August 2013. In this letter [B] wrote: “(…) 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. (…)”. [X] disputes that these precontractual statements can be put aside by referring to the entire agreement clause, especially since such a clause does not prevent reliance on the precontractual phase under Dutch law. [Y] , on its part, relies on the entire agreement clause (article 28.6 of the Sales Agreement), which excludes any and all (alleged) warranties, conditions and undertakings which are not reflected in the Sales Agreement.

The Court will decide that [X] cannot rely on said alleged precontractual ‘guarantee’ (warranty) because the entire agreement clause stands in the way of this reliance. The Court considers the following with respect to the interpretation of the entire agreement clause under Dutch law. The Dutch Supreme Court decided in its ruling of 15 April 2013, ECLI:NL:HR:2013:BY8101 (Lundiform/Mexx), para. 3.5.3 that the meaning of an entire agreement clause under Dutch law will depend on the circumstances of a given case such as the wording of the clause, the nature, content, goal and level of detail of the agreement that contains the entire agreement clause, and the way in which the clause during the negotiations has been discussed and became part of the agreement. The Dutch Supreme Court further added that the usual purpose of an entire agreement clause is that the parties are not bound by earlier agreements which are in contradiction with the contract if those agreements are not contained in the contract and the contract does not refer to those agreements. In essence, this decision of the Dutch Supreme Court implies that the meaning of an entire agreement clause must be determined by interpretation of that clause according to the applicable standard for interpretation under Dutch law.

A contract such as the Sales Agreement needs to be interpreted under Dutch law according to what is known as the “Haviltex formula”. The “Haviltex formula” (named after the decision of the Dutch Supreme Court of 13 March 1981, ECLI:NL:HR:1981:AG4158, Haviltex) entails that the question on how a contract provision, such as the entire agreement clause and other provisions in the Sales Agreement, must be interpreted cannot only be answered by looking at the wording of the clause and the linguistic meaning thereof. What is decisive is the meaning which the parties, in the given circumstances, could have reasonably attributed to the provisions in the contract and what the parties could have reasonably expected from each other in that regard. This does not mean that the wording of the clause is irrelevant. Great significance may be attached to the wording, for example in the case of a detailed commercial contract concluded between professional parties each assisted by a lawyer, after intensive negotiations (see the ruling of the Dutch Supreme Court of 19 January 2007, ECLI:NL:HR:2007:AZ3178, Meyer/PontMeyer). However, although the fact that a contract is a commercial contract concluded by professional parties in the presence of their lawyers and after intensive negotiations about the wording of the contract terms, all other facts and circumstances surrounding the transaction remain relevant and may be decisive. The application of the “Haviltex formula” entailing “all facts and circumstances” of the given case remains decisive, also in the case of a carefully drafted commercial contract (see the ruling of the Dutch Supreme Court of 5 April 2013, ECLI:NL:HR:2013:BY8101, Lundiform/Mexx). For the sake of clarity, the Court notes that this matrix of facts will only be relevant if and in as far as a party has relied on those other facts and circumstances and has sufficiently substantiated these allegations.

5.9.Textually, the entire agreement clause in the Sales Agreement explicitly states that neither party can rely on any warranty that is not reflected in the Sales Agreement. This means that any (alleged) precontractual warranty, even if the letter of 8 August 2013 could be qualified as a warranty to the effect that [Y] was obliged to obtain and provide a Type Certificate for the WTGs on time, cannot be relied upon because that warranty is not reflected in the Sales Agreement. This in itself indicates that the (alleged precontractual) obligation to provide a Type Certificate was not a part of the (final) deal, i.e. the Sales Agreement. The Court adds that the text of the entire agreement clause must generally be considered to correctly reflect the common intention of the parties because the Sales Agreement is a commercial contract concluded between professional parties that had the benefit of legal advice in drafting the Sales Agreement. Furthermore, the Agreement was discussed in great detail, which resulted in elaborate contracts with numerous annexes.

The next issue is whether or not the Sales Agreement itself contains an obligation on the part of [Y] to timely obtain and maintain a Type Certificate and provide this to [X] . The Court holds that the Sales Agreement does not entail that [Y] was obliged to obtain and maintain a Type Certificate for the WTGs. The Court considers the following. The Court notes that the wording of the Sales Agreement in itself does not contain any clause which specifically stipulates such an obligation of [Y] . Article 6.1 of the Sales Agreement, which specifies the obligations of [Y] under the Agreement, does not mention the obligation to obtain a Type Certificate in specific terms. Article 6.1(e) Sales Agreement says broadly and in general terms that [Y] as the contractor is obliged 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.” Article 6.1(b) of the Sales Agreement also states in broad and general terms that [Y] as the contractor is obliged to comply with all legal requirements, security measures, devices, precautions and personal means of protection provided for by the law for the execution of the works. According to the Court, these general obligations of a contractor for the execution of the works do not entail that [Y] was obliged to obtain and provide a Type Certificate for the WTGs.

In this context, the Court also deems it important that [X] itself has stated in its writ of summons (paragraph 7.17) that it follows from the Regulation that either a Type Certificate or a DECS qualifies as a technical document that had to be provided to the Ministry of Energy and Natural Resources. Therefore, it cannot be said that only a Type Certificate was required under Turkish law and, consequently, that [Y] was obligated to provide [X] with a Type Certificate. A DECS would have sufficed. It is also undisputed that [Y] provided a DECS to [X] before the (disputed) deadline of January 2016. Moreover, the Court, having reviewed the relevant Turkish law, accepts that at the time the Sales Agreement was concluded, the applicable version of the Regulation did not mention the need for a Type Certificate at all. This is also confirmed in the legal opinion by BTS whose content has not been denied by [X] . All the aforementioned circumstances show that there was no obligation for [Y] to provide [X] with a Type Certificate. Consequently, it also cannot be said that [Y] breached Article 15.1(b) of the Sales Agreement (a representation and warranty by [Y] that it complied with all applicable legal requirements at the time the Sales Agreement came into effect).

5.11.Under Dutch law the conduct of the parties after the conclusion of a contract may be relevant as well for the interpretation of an agreement according to the Haviltex formula (standard case law, see most recently Dutch Supreme Court decision of 10 June 2022, ECLI:NL:HR:2022:852, para. 3.2.4 end). The conduct of the parties after the conclusion of the Sales Agreement and prior to January 2016 does not lead to the conclusion that [Y] agreed with [X] or let [X] reasonably believe that it was under the obligation to provide a Type Certificate to [X] .

5.12.In this regard, [X] has specifically referred to three e-mails, dated 22 May 2015, 9 July 2015 and 12 October 2015 (see above, sub 2.7., 2.9. and 2.11.). In the first e-mail, “Type test certificates” are requested from [Y] . In response, [Y] sent the DECS to [X] . According to [Y] , it did not receive a subsequent response (shortly afterwards), with a request to provide a Type Certificate. Considering that the request for “Type test certificates” is quite general and could also have referred to a DECS in view of the applicable Regulation at that time, the Court rules that the e-mail does not hold a sufficiently clear confirmation that [Y] was or should have been aware of any obligation to provide a Type Certificate to [X] . The second e-mail only contains an announcement by [X] that the WTGs were “even without a certificate”. This announcement is also quite general in its wording. The e-mail does not include a sufficiently specific request for a Type Certificate either. A necessity to provide [X] with a Type Certificate cannot be deduced from this. Finally, the last e-mail from [X] does contain a request for a Type Certificate. In response, [Y] provided a DECS to [X] . As mentioned above, a DECS would have been sufficient at that time for governmental project approval. Therefore, the Court finds that [X] ‘s argument that it was clear from the parties’ conduct after the conclusion of the Sales Agreement that [Y] had to provide [X] with a Type Certificate does not hold either.

5.13.Considering the above facts and circumstances, the Court finds that the relevant circumstances prior to and after the closing of the Agreements do not set aside the plain meaning of the text of the Sales Agreement. Therefore, absent any other facts and circumstances alleged and sufficiently substantiated by [X] , the Court considers a textual interpretation of the Sales Agreement decisive. This means that [Y] cannot rely on any alleged precontractual warranty due to the entire agreement clause, and also that [Y] did not breach the Sales Agreement by failing to obtain and provide a Type Certificate for the WTGs. Consequently, [X] was not entitled to suspend performance of the Sales Agreement and to terminate the Agreements based on the alleged aforementioned breach.

5.14.
[X] further claims that [Y] 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 meet the contractual payment Milestones. In this regard, [Y] states that it was [X] who breached its obligations under the Sales Agreement, since [X] had refused to take delivery of the generators and other relevant parts of the WTGs. With regard to this issue in dispute, the Court considers as follows.

Breach of contract by [X] ?

5.15.The Court considers the following. In its letter, dated 14 January 2016, [X] made it clear that it had decided not to use [Y] ’s WTGs that had been produced for the [..] Project, on the basis that [Y] had not provided [X] with a Type Certificate. As explained above, [X] ‘s argument that [Y] had to provide [X] with a Type Certificate does not hold. By refusing to accept the WTGs from [Y] for that sole reason, [X] made it impossible for [Y] to fulfil its obligations under the Sales Agreement. Therefore, it was [X] who prevented [Y] from complying with its obligations under the contract, more specifically by preventing [Y] from continuing the installation of the WTGs at the site. As a consequence, [X] was in default as of 14 January 2016, as [X] had made it clear in said letter of that date that it would not accept the WTGs from [Y] . For that reason, it was not necessary for [Y] to send [X] a notice of default allowing [X] to remedy its breach. [X] being in default allowed [Y] to draw under the L/C as from 14 January, 2016.

5.16.From the above it follows that the claims of [X] under I up to and including IV will be dismissed. The Court will now discuss the request of [Y] – after the amendment of the counterclaim by [Y] – to partially terminate the Sales Agreement and the consequences thereof. This will include discussion of [X] ‘s claim under V and further. [Y] ’s requests for declaratory relief that it did not breach any of its obligations under the Sales Agreement and that [X] ‘s attempted termination of the Sales Agreement has no effect, will be allowed.

Amendment of the counterclaim under iii, iv, v and vi

5.17.
[X] has not raised objections against the amendment of the counterclaim by [Y] . The Court finds that the amendment of the counterclaim by [Y] under iii, iv, v and vi (as set out in paragraph 4.1) do not violate the principles of due process of law. Therefore, the Court will give judgment based on the amended counterclaim. In this regard, the Court finds as follows.

Partial termination of the Sales Agreement

5.18.
[Y] requests the Court to terminate the elements of the Sales Agreement that have not already been performed, notably the installation and commissioning of the WTGs on site, as well as any guarantees on the WTGs components and performance thereof. [X] has not disputed the amendment of claim in this regard. Since the breach of contract by [X] (see under 5.15) justifies the requested partial termination of the Sales Agreement based on Article 6:265 (1) and Article 6:270 DCC, this claim ( [Y] ‘s claim under (iii)) will be allowed.

Consequences of the termination of the Sales Agreement – delivery of components

5.19.As a result of the partial termination of the Sales Agreement, both parties are relieved of their obligations under the Sales Agreement that have not been fulfilled (Article 6:271 DCC). It is not in dispute that [X] has fully performed all its obligations regarding Milestones (i) to (v) inclusive and that [Y] manufactured most of the components of the WTGs, with the exception that [Y] resold the two generators that were manufactured for the [..] Project. [X] has not disputed [Y] ‘s claim under (iv) to order [X] to make arrangements at its own expense to accept delivery of the components of the WTGs that are currently stored by and/or at the expense of [Y] within one month after the date on which the final judgment is given. Therefore, this claim will be allowed. Since [X] asked itself for delivery of the components of the WTGs in January 2016, November 2018 and September 2019 (see above, sub 2.18, 2.27 and 2.28), the Court finds that there is no reason to subject [X] to an incremental penalty payment (in Dutch: dwangsom), as claimed by [Y] . There is no indication at this time that [X] will not follow the Court’s judgment. For that reason, this part of [Y] ‘s claim will be dismissed.

Consequences of the termination of the Sales Agreement – refunds and damages

[Y] states that as a consequence of the Sales Agreement not being fully executed and the Full Service Agreement not coming into effect, [Y] was denied the agreed upon opportunity to realise the profit it would have earned if both Agreements had been executed according to plan. [Y] furthermore states that it has to be taken into account that it has also saved certain amounts as a result of not having to perform or deliver certain acts or components.

In its further written submission of 12 January 2022, [Y] states it has not delivered or performed the following acts/components, which resulted in the following savings on the cost price of these acts/components:

Generator EUR 400,000.00

T-base platform EUR 46,646.00

Transport factory components EUR 35,000.00

Installation EUR 110,000.00

Subtotal EUR 591,646.00

x 2 (both WTG’s) EUR 1,183,292.00

Crane (de)mobilisation EUR 20,000.00

Crane movement EUR 20,000.00

Site facilities, safety & security EUR 10,000.00

Various costs EUR 281,712.00

Total EUR 331,712.00

Grand total EUR 1,515,004.00

According to [Y] , this calculation is based on the assumption that the full contract price would have been paid by [X] . Therefore, the combined value of the last two Milestones (vii and viii) – an amount of EUR 515,950.00 in total – should be deducted from the ‘saved’ amount, since this amount has not been paid by [X] . Thus, according to [Y] , [X] would be entitled to a refund of EUR 999,054.00 due to the partial termination of the Sales Agreement, if the Sales Agreement is seen in isolation. [Y] argues furthermore that the other claims [Y] has against [X] will also have to be set off against this amount.

[X] argues that the costs saved by [Y] are much higher. In this regard [X] also added components of the WTGs that were not delivered to [X] by [Y] . According to [X] ‘s calculation, [Y] has to (re)pay [X] somewhere between

EUR 3,622,558.48 and EUR 4,124,112.31. These amounts include the repayment of surplus profit for the generators and multiple WTG components as well as statutory commercial interest.

5.22.In total [Y] has received from [X] an amount of EUR 4,643,550.00 being the revised contract price of EUR 5,159,500.00 less the final two Milestones of EUR 515,950.00 in total, which were left unpaid. Due to the partial termination of the Sales Agreement, both parties are relieved from performing any of their further obligations under the Sales Agreement, except that the parties’ claims in connection with (partial) repayment for components not delivered and acts not performed, including the two generators, have to be settled.

5.23.
[Y] is willing to pay a refund to [X] of EUR 999,054.00. This is the amount it has saved by not having to fulfil all of its obligations under the Sales Agreement. This amount includes the cost price of the two generators delivered to a third party. [Y] claims it is entitled to the profit it could have made with respect to these generators and with respect to all other components not delivered and acts not performed.

5.24.It is in dispute whether [Y] is entitled to loss of profit. Therefore, the Court will first discuss the positions of both parties regarding this issue under the Sales Agreement and the Full Service Agreement. Thereafter, the Court will discuss the amount [Y] has to repay to [X] .

Damages: (a) loss of profit related to the Sales Agreement and the Full Service Agreement

5.25.
[Y] states that [X] is liable for any further damages that it has suffered as a result of [X] breaching the Sales Agreement and that it is entitled to lost profit with respect to the components not delivered and acts not performed under the Sales Agreement (see under 5.20). As a result of the breach of contract by [X] , the Full Service Agreement did not come into effect. According to [Y] , it would have been able to realise a profit of EUR 102,113.08 under the Full Service Agreement if [X] had fulfilled its contractual obligations. [Y] states it is entitled to full compensation in this regard.

5.26.
[X] argues that it cannot be held liable for any lost profits claimed by [Y] based on Article 21.3 of the Sales Agreement and Article 11.1 of the Full Service Agreement. It follows from these clauses that ‘indirect or consequential losses or damages’ shall in no event have to be reimbursed, unless the Agreements contain explicit language that states otherwise. According to [X] , loss of profit is considered as an indirect or consequential loss, as mentioned above. In this regard, [X] inter alia refers to Article 9.2 of the Sales Agreement. [X] also argues that it cannot be held liable for any loss of profit in relation to the Full Service Agreement either, because this agreement has not come into force and has not yet commenced. The Take Over Certificate, mentioned in Article 5.2 of the Sales Agreement, was never signed, nor was the Final Acceptance Certificate, mentioned in Article 1.5 of the Full Service Agreement. Without any further substantiation, it cannot be assumed that the Full Service Agreement would have ever commenced. [X] therefore disputes that it can be held liable for the full EUR 102,113.08.

5.27.The Court considers as follows. Article 21.3 of the Sales Agreement and Article 11.1 of the Full Service Agreement state that indirect or consequential damages or losses do not have to be reimbursed by either party. The terms ‘indirect or consequential damages or losses’ do not have a fixed meaning under Dutch law. Like any other contractual term, their meaning must be determined by interpretation of these terms according to the Haviltex formula. The mere language of the terms does not provide a pointer in the direction of the correctness of one or another interpretation. A relevant point for interpretation can be found in Article 9.2 of the Sales Agreement. That provision says that in case of termination (on the ground referred to in that provision) each party must bear its lost profits itself. Furthermore, it is most common in the Netherlands that the undefined terms ‘indirect or consequential damages or losses’ are generally and reasonably understood to include lost profits. In addition, it has neither been argued, nor has it become evident that these Articles cannot be relied upon because that would be considered unacceptable according to standards of reasonableness and fairness (Article 6:248(2) DCC). Therefore, the claim of [Y] for loss of profit should be dismissed for that reason alone. In addition, the Court finds that [Y] has inadequately substantiated why the calculated amount of lost profit is reasonable in the given circumstances, especially considering the fact that the Full Service Agreement did not come into effect. Furthermore, it follows from Article 5.2 of the Sales Agreement and Article 1.5 of the Full Service Agreement that the Full Service Agreement would only come into effect after the signing of the Take Over Certificate and would only commence after the signing of the Final Acceptance Certificate, since page 1 of the Full Service Agreement does not contain a commencement date. It is undisputed that both Certificates have not been signed. The Court finds that it cannot be assumed that both Certificates would have been signed if the [..] Project had been completed as planned. In this regard, the Court deems it important that it is undisputed that the WTGs were a new model and needed to be tested before the signing of the Take Over Certificate and Final Acceptance Certificate. Without any further substantiation, it cannot be assumed that the Full Service Agreement would have commenced as argued by [Y] . Considering the above facts and circumstances, the Court finds that [X] cannot be held liable for possible indirect or consequential damages related to both the Sales Agreement and the Full Service Agreement and that indirect or consequential damages entail loss of profits. Therefore, the Court will dismiss [Y] ‘s claim for loss of profit.

Refund under the Sales Agreement

On the basis of the aforesaid considerations, the Court finds that [Y] is not entitled to the profit it could have realised with respect to the generators and the other components not to be delivered and acts not to be performed based on Article 21.3 of the Sales Agreement. As a result of the partial termination of the Sales Agreement, [Y] no longer has to produce and deliver the generators and other components to [X] and does not have to perform various acts. This means that [Y] must bear its lost profits on these components/acts itself. As a consequence, the amount of EUR 999,054 [Y] is willing to repay to [X] needs to be increased by the profit margins with respect to these components not delivered and acts not performed.

With respect to the generators, during the court hearing [Y] ’s lawyer stated that the sales price of a generator amounts to EUR 800,000.n

Page 4 court hearing

In Exhibit 34 [Y] stated a cost price per generator of EUR 400,000, which is also the amount per generator it is willing to repay to [X] . As [X] has argued that the difference between the cost price of EUR 400,000 and the sales price of EUR 800,000 results in a profit margin of EUR 400,000 per generator. This means the court will calculate with an amount of EUR 400,000 per generator for lost profit (and a refund for the two generators of EUR 1,600,000 in total). For the profit with respect to the other components and acts, the Court will follow [Y] ’s exhibit 34: the T-base platform 2 x EUR 18,658.40, the transport factory components 2 x EUR 3,500 and the installation 2 x EUR 11,000. With respect to crane (de)mobilisation, crane movement, site facilities, safety & security and various costs, this is an amount of EUR 145,000. [X] has disputed the amount of EUR 145,000, but should have submitted more documentation to support its dispute. All in all , this is a total amount of EUR 1,011,316,80. This means that [Y] needs to refund to [X] an amount of EUR 99,054.00 plus EUR 1,011,316.80, which is EUR 2,010,370.80 in total.

5.29.Leaving aside the generators, the Court will order [X] to accept delivery of the components it has already paid for. Therefore [Y] will not have to refund [X] any amounts paid by it for these components. Furthermore, the Court will dismiss [X] ’s defence that the costs saved by [Y] are much higher. [X] has either not substantiated its defence in any way, and should have explained in more detail why it objects to the relevant line items in [Y] ‘s calculation, or explained why its comments are directed at the calculation of line items it only benefits from, in particular the costs for installations.

Damages: (b) storage costs, transportation costs and VAT

[Y] states that it has incurred costs related to the storage of the WTG components that were envisaged to be used in the [..] Project. [Y] has made use of storage services provided by [J] regarding the components that were ready for shipment to Türkiye, but were refused by [X] and remained in the Netherlands. [Y] argues that it also had to store the WTG towers that had been manufactured in Türkiye by a Turkish company named [K] A.Ş. (“ [K] ”) when [X] stated that it would not use [Y] ‘s WTGs. Therefore, [Y] has also incurred costs related to the storage of the WTG towers at [K] ‘s facility. Furthermore, in the course of February and March 2022, it became clear to [Y] that [K] was no longer willing to store the WTG towers. Therefore, [Y] states that it had to move the towers elsewhere. The WTG towers were moved to a storage site of Logistics Plus Belgium BVBA (“Logistics Plus”) in Türkiye in April 2022.

[Y] argues that it has paid EUR 57,132.89 to [J] for external storage up to and including 31 March 2022. Furthermore, [Y] states that it has paid EUR 310,556.00 to [K] for storage of the WTG towers up to 31 March 2022 and (18%) VAT due over the purchase price of the WTG towers. Also, [Y] states that it has paid EUR 45,092.00 (incl. VAT) for the transportation of the WTG tower sections from [K] ‘s site to the new storage site of Logistics Plus.

According to [Y] , [X] has to compensate [Y] for the damages suffered by [Y] as a result of [X] ‘s breach of contract. In this regard, [Y] also states that it has reserved ownership of all WTG components until all payments that [X] was supposed to make in relation to the [..] Project had been made (in Dutch: eigendomsvoorbehoud). Furthermore, [Y] argues that [X] itself had asked [Y] not to move the WTG components. It was only after a long period of time – multiple years – that [X] asked for the WTGs to be delivered to its site in Germany. According to [Y] , the costs incurred in relation to exercising the leverage of a retention title are for the account of the party that breached its obligations.

[X] argues that it cannot be held liable for any damages claimed by [Y] based on Article 21.3 of the Sales Agreement. Furthermore, [X] states that it should not be ordered to reimburse [Y] for any storage costs. According to [X] [Y] has forfeited the right to claim storage costs (Article 6:248(2) DCC) and/or failed to mitigate these costs (Article 6:101 DCC). In this regard, [X] argues that it requested [Y] on 14 January 2016 to deliver all of the WTGs’ components to ‘ [..] ‘, which is a building (currently) owned by [BV 1] . [X] could have stored the components at [..] free of charge, which is evident from the witness statement of [I] (see above, 2.36).

However, in response to this request [Y] refused delivery, claiming all components were still [Y] ‘s property. According to [Y] , it had reserved ownership of the WTG components until all payments in relation to the [..] Project were fulfilled. [X] states that [Y] ‘s reasoning does not align with a correct interpretation of the Sales Agreement. It follows from Article 15.7 that once a component has been paid for in full, [Y] no longer has a reservation of title thereof and cannot exercise a retention right thereto, according to [X] . Therefore, the (external) storage costs that [Y] claims could have been prevented. [X] repeatedly asked for delivery of the components in November 2018 and September 2019. As a result, [Y] forfeited the right to claim storage costs and/or failed to mitigate them. In this regard, [X] also states that [Y] , after receiving payment for the components, never mentioned any storage costs to [X] for over three years.

5.32.Furthermore, [X] states that if the Court holds that [X] should reimburse [Y] for any external storage costs incurred, such amount is substantially lower than claimed by [Y] . In this regard, [X] inter alia states that [Y] , as [Y] itself explained, applies a “first in, first out” (FIFO) system. This means that the products that are currently stored can just as well be considered as regular, current stock. [X] also points out that [Y] claims EUR 45,902.00 in storage costs only after [Y] ‘s final amendment of the counterclaim. According to [X] , what stands out is that [Y] has to repay [X] in the counterclaim in every possible scenario.

5.33.The Court finds that [X] does not have to compensate for the storage costs, transportation costs and VAT incurred by [Y] . First of all, the Court agrees with [X] that [Y] , after its final amendment of the counterclaim, only claims EUR 45,902.00, which is the amount [Y] paid to Logistics Plus for the transport of the WTG tower sections to the new storage location. Therefore, [Y] now only seems to claim these transportation costs, plus an amount of EUR 254.13 for storage costs per calendar day from 6 April 2022 onwards, until the day that [X] accepts delivery of the WTG components. In the following the Court will accept that [Y] , after it was paid under the L/C for the components of the WTGs, had a duty to inform [X] of what it intended to do with the components that were paid for and inform [X] of the costs of storage. [Y] failed to comply with this obligation, taking into account the reasonable interests of [Y] . As a consequence, the damages claimed by [Y] in this respect (storage costs, transportation costs and VAT) are fully considered to be a consequence of the contributory negligence of [Y] to comply with this obligation. Pursuant to Article 6:101(1) DCC, which also encompasses contributory negligence, said costs incurred by [Y] are for its own account. The Court will dismiss [Y] ‘s claims of EUR 45,902.00 and EUR 254.13 per calendar day from 6 April 2022 onwards, based on the following further considerations.

5.34.It is undisputed that [X] requested [Y] to deliver all parts of the WTGs that were intended to be used for the [..] Project in its e-mail dated 14 January 2016. Although [Y] has argued that [X] itself had asked [Y] not to move the WTG components after 14 January 2016, considering the e-mail of [X] dated 19 January 2016 (see above, 2.19) the Court finds that the subsequent correspondence between the parties reads otherwise. As follows from the e-mails of 17 and 18 February 2016 (see above, 2.21 and 2.22), [X] requested [Y] to deliver the rotor blades. It is undisputed that [Y] refused to deliver the rotor blades because it had reserved ownership thereof until all payments in relation to the [..] Project were fulfilled. It is also undisputed that, after [X] ‘s response that it had already paid for the rotor blades, [Y] did in fact deliver the rotor blades to [X] . Therefore, it cannot be said that [X] did not wish to receive such components of the WTGs, as stated by [Y] .

5.35.Furthermore, it is undisputed that in June 2016, [Y] drew under the L/C up to and including Milestone vi and that as of then a total amount of EUR 4,643,550.00 had been received by [Y] . This means that [X] had paid for all, or at least most, components of the WTGs, except for the mechanical completion and takeover thereof (Milestones vii and viii). In these circumstances, the Court finds that it would have been [Y] ’s obligation to request [X] – at some point in time after receipt of the payment – whether it wanted to take delivery of the WTGs components, since [Y] itself invoked the L/C, which resulted in payment of all, or at least most, components of the WTGs. [Y] ‘s statement that it had reserved the title/ownership of all WTG components until all payments that [X] was supposed to make in relation to the [..] Project had been made does not justify a different conclusion. In this regard, the Court finds that it cannot be said that the payment of all materials in full, as mentioned in Article 15.7, refers to the payment of all Milestones by [X] . The Court is of the opinion that once all components (‘materials’) have been paid for in full, [Y] no longer has ownership of those components and can then no longer exercise its retention rights. In this regard, the Court deems it important that [Y] started storing the WTGs components at [J] as of April 2016. Furthermore, as of June 2016, the storage at [K] was no longer free of charge. Considering the fact that [Y] was already incurring costs at the time it drew under the L/C, the Court finds that [Y] should have given [X] the opportunity to decide what it wanted to do with the components, as the owner of the components and also to mitigate damages. Although [Y] had remarked in its e-mail dated 5 January 2016 (see above, 2.16) that [X] would have to pay for the components that were to be stored, it is undisputed that [Y] did not bring the incurred storage costs to [X] ‘s attention until 19 December 2019, while [X] had asked for delivery of the WTG’s components already on 14 January 2016. Furthermore, during the renegotiations between the parties, [X] asked for the transportation of the WTG components again on 12 June 2018, 21 November 2018 and once more on 13 September 2019. In addition, as stated by [Y] , [Y] applies a “first in, first out” (FIFO) system. According to [Y] , this implies that the WTG components do not degrade due to prolonged periods of storage and are always manufactured in accordance with all the latest standards. As a result, certain WTG components were removed from storage and later were put into storage again. In the opinion of the Court, it seems that the FIFO system – in the opinion of [Y] – implies that [X] in fact has to pay for [Y] ‘s current stock, as certain parts that were initially made for the [..] Project were sold and apparently remanufactured. This also follows from the fact that the generators that were initially made for the [..] Project were sold by [Y] . In light of the above, the Court finds that [Y] should have taken appropriate action after the reception of the Milestones that covered all or at least most components of the WTGs in order to mitigate damages. [Y] failed to do so. Therefore, the Court accepts that [Y] cannot claim compensation for storage costs, as well as the transportation costs and VAT it incurred due to contributory negligence (Article 6:101(1) DCC). [Y] ‘s claims that [X] is liable for the damage that [Y] suffered as a result of [X] ‘s breach of contract and that [X] should pay [Y] the damages [Y] suffered thus far, will be dismissed.

Conclusion

5.36.From the above it follows that [X] ‘s claims need to be dismissed, except for the amount that [Y] has to repay to [X] as a result of the partial termination of the Sales Agreement in the counterclaim. [Y] ‘s claims will be allowed, except for its claims under v (a), (b) and (c) and the incremental penalty payment of claim iv (see above, 4.1).

5.37.In summary, the Court will grant claim V. of [X] to an amount of EUR 2,010,370,80. The statutory interest claimed by [X] pursuant to Article 6:119 DCC will also be allowed from the fifteenth day after the date the Sales Agreement is partially terminated, in other words, the date of this judgment. [Y] ‘s defence that it was [X] who breached its obligations under the Sales Agreement and that [Y] does not owe [X] statutory (commercial) interest over any amount that it has to refund to [X] , will be dismissed. The repayment is the result of the partial termination of the Sales Agreement claimed by [Y] and therefore [X] has a claim for statutory interest from the fifteenth day after the partial termination. The statutory commercial interest (Article 6:119a DCC) is not applicable because the repayment obligation is not a primary payment obligation arising directly out of the commercial agreement, but is based upon statutory law (Article 6:271 DCC). See most recently DSC 22 April 2022, ECLI:NL:HR:2022:596 (para. 3.2). However, the regular statutory interest does apply (Article 6:119 DCC).

Costs of the proceedings

5.38.
[X] , as the preponderantly unsuccessful party in the original action, will be ordered to pay the costs in connection with the original action. The Court finds that the partial repayment of the Milestones in the original action is solely the result of the fact that the partial termination of the Sales Agreement is allowed in the counterclaim. The cost order is based on the NCC rates to assess lawyers’ fees (see Annex III to the NCC Rules). In the original action, the costs on the part of [Y] are set at:

– court fee EUR 15,634.00

– lawyers’ fee EUR 14,000.00 (3.5 x EUR 4,000.00)

total amount EUR 29,634.00.

Furthermore, the statutory interest (Article 6:119 DCC) on the costs of these proceedings will be allowed, as stated in the decision.

Since neither party has succeeded preponderantly in the counterclaim, the Court will order that each of the parties bear its own legal costs.

Decision

The Court:

in the original action

6.1.orders [Y] to repay to [X] an amount of EUR 2,010,370,80, plus statutory interest thereon (pursuant to Article 6:119 DCC) with effect from the fifteenth day after the date the Sales Agreement is partially terminated by this judgement until payment is made in full;

6.2.orders [X] to pay the costs of these proceedings, set at EUR 29,634.00, plus statutory interest thereon (pursuant to Article 6:119 DCC) with effect from the fifteenth day after the date of service of this judgment until payment is made in full;

6.3.declares this judgment enforceable notwithstanding appeal;

6.4.dismisses any other claim,

in the counterclaim

6.5.declares that [Y] did not breach any of its obligations under the Sales Agreement;

6.6.declares that [X] ‘s attempted termination of the Sales Agreement has no effect;

6.7.terminates 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;

6.8.orders [X] 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 [Y] within one month after the date of this judgment;

6.9.declares this judgment enforceable notwithstanding appeal;

6.10.orders that each of the parties bears its own legal costs;

6.11.dismisses any other claim.

Done by C.W.D. Bom, A.C. Bordes and R.P.J.L. Tjittes, Judges, assisted by A. Hut, Clerk of the Court.

Issued in public on 29 June 2022.

APPROVED FOR DISTRIBUTION IN eNCC

THE SIGNED ORIGINAL IS IN THE HARD COPY FILE

SIGNATURE PAGE 1 OF 2

C.W.D. BOM

(PRESIDING JUDGE)

SIGNATURE PAGE 2 OF 2

CLERK OF THE COURT