ECLI:NL:GHAMS:2025:3411, Gerechtshof Amsterdam, 16-12-2025, 200.320.438

1. Procedural history

This judgment follows the earlier interim judgment in this case dated 6 August 2024. With the interim judgment the Court allowed Meriç to provide further evidence.

On 4 December 2024 and on 26 March 2025 witnesses were heard by the Court. The court records of those hearings are part of the case file.

Following the witness examinations, the parties submitted to the Court:

- a statement after witness examinations by Meriç, together with Exhibits 68 through 73;

- a statement after witness examinations by Lagerwey, together with Exhibits 58 through 60.

2. The considerations

The first question to be answered in appeal is whether it has been agreed that Lagerwey would ensure that the Type Certificate for the wind turbine generators (WTGs) would be provided no later than necessary for obtaining the governmental permit in time, as not getting the certificate in time was Meriç’s reason for terminating the Sales Agreement.

In this respect Lagerwey argues that it never agreed to provide a Type Certificate, and that, in any event, it never agreed to provide a Type Certificate at any specific point in time. Furthermore, it argues that the entire agreement clause in the Sales Agreement bars Meriç’s claims based on any agreement not included in the Sales Agreement.

The Court allowed Meriç to provide further evidence:

(i) that Mr [B] sent the letter dated 8 August 2013, and

(ii) that Meriç and Lagerwey, during a meeting on 12 September 2013, prior to the signing of the Sales Agreement, discussed the need for a Type Certificate, and that at that meeting Lagerwey agreed to provide it.

During the witness examinations the Court heard Mr [B] and Mr [H], as witnesses on behalf of Meriç, and subsequently Mr [D], Mr [I] and Mr [J], as counter-witnesses on behalf of Lagerwey.

[B]’s letter dated 8 August 2013

Mr [B] stated as a witness that he told Mr [K] that the Type Certificate would be obtained in about one year and that Mr [K] asked him to put that in writing, following which he sent a letter to Mr [K] mentioning: “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.” Mr [B] also stated that he sent similar letters to other potential investors. He based his expectations of the time needed to obtain a Type Certificate for a new type of WTGs on [J] having said in 2009 that it would take about two years, and that Lagerwey in 2012 had already undertaken several steps to get the Type Certificate.

The Court takes into account that Mr [B]’s task was to find investors and customers for Lagerwey in Turkey, and that accordingly he attempted to give reassurances to them based on his understanding of the situation at the time. Lagerwey argues that the letter provided to the Court is a forgery, but Lagerwey provides no adequate substantiation for this allegation. The statements by Mr [D] that he did not know Mr [B] to communicate in writing and that the representatives of Lagerwey were not aware of this letter, are not sufficient to assume that the letter is false. Consequently, the Court accepts that Mr [B] sent the letter dated 8 August 2013 to Mr [K].

The 12 September 2013 meeting

Mr [H] stated as a witness that he was an inhouse lawyer for Mr [A]’s company and that he was involved in the negotiations regarding the Sales Agreement. He was present at the 12 September 2013 meeting, as were Mr [A], Mr [D] and Mr [I]. Besides the financial issue, which was the main issue to be solved, various other matters were discussed, such as the Type Certificate. Mr [A] informed Lagerwey that a Type Certificate would be required to build the wind turbines in the park in Turkey. One of the representatives for Lagerwey responded that in essence they understood the need for a certificate, but that they had told them before that the turbines were not certified yet, and that they were working on it, because they had to obtain it for themselves. According to Mr [H], they may have said something about how long that would take, although Mr [H] does not recall exactly what was said. The meeting became heated and at a certain moment Mr [A] put a hundred euro banknote on the table, saying that he would pay for the lunch, apparently on the verge of leaving and going home. Mr [H] further stated that it was also discussed whether a clause regarding a Type Certificate should be included in the agreement. He did not recall why in the end a clause regarding the Type Certificate was not included, but he thought that no specific clause could be agreed upon and that Lagerwey had said that they were working on it, although they could not say when it would be obtained, but they would provide it when they would get it. Mr [H] also stated that he was not aware of the letter dated 8 August 2013.

Mr [D] stated as a witness that he was present at the 12 September 2013 meeting. During the meeting it was mentioned frequently that at a certain point in time a certificate would be needed. Although Meriç did not mention any regulatory requirement for a certificate, everybody knew that a Type Certificate would be helpful in obtaining financing for a project such as this. Mr [D] further stated that during the meeting they said, as they had said before, that they would do their best to get the certificate, but that they could not give any specific timeframe. They said that once they had obtained the certificate, they would immediately give it to Meriç. They also said that if they could get the certificate faster, they would do so, as this was in their interest as well.

Mr [I] stated that he did not recall this meeting specifically, but that in August or September 2013 it would not have been possible to give any indication of the timeframe for obtaining the certificate, or it would have been a very rough indication only, like “we hope in two years or so”. Mr [I] further said that in applying for a certificate, one has to provide various kinds of information, following which the institute takes time and may ask for more information, making it hard to predict how long everything will take.

Mr [J] stated that he was not present at the meeting of 12 September 2013.

In determining whether it follows from the Sales Agreement that Lagerwey agreed to provide a Type Certificate at any specific point in time, the Court will apply Dutch law, and consequently, the Court will use the Dutch rule of interpretation appropriate for an agreement as the Sales Agreement, also known as the “Haviltex” rule. This holds that the obligations of the parties towards each other are not solely determined by a linguistic interpretation of the written clauses of the agreement. Although the language is important, so is the meaning that 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. The Court will therefore consider the Sales Agreement together with the witness statements and all other evidence accordingly. The statement of Mr [H] is especially relevant because his recollection is detailed and, as a lawyer, he was there to pay attention to what was discussed and agreed.

According to the witnesses, Meriç mentioned various times at the meeting the need for a Type Certificate for the WTGs. However, as Mr [H] acknowledged as a witness, Lagerwey did not commit to a timeframe for the Type Certificate but merely indicated that Lagerwey was trying to obtain a Type Certificate and that they would provide it to Meriç as soon as they would get it. Thus, when signing the Sales Agreement at the end of the meeting, the parties did not include a provision regarding the Type Certificate. This supports the view that at the meeting the need for a Type Certificate was discussed, but that it was not agreed that Lagerwey would provide a Type Certificate at any specific point in time.

As to Mr [B]’s letter dated 8 August 2013 - although it has indeed been sent - it was apparently of no consequence for the parties’ understanding of the Sales Agreement and the providing of the Type Certificate. None of the witnesses mentioned that it was raised during the meeting. And apparently it did not give Meriç reason to insist on a provision in this regard in the Sales Agreement, as one would have expected if the letter was as essential to the transaction as Meriç now argues. This is understandable, as the letter was sent five weeks before the Sales Agreement, and in a different context, namely within the framework of discussions regarding a licence agreement. Consequently, as the Court finds that Mr [B]’s letter is not relevant, neither is it relevant whether or not Mr [B] acted on behalf of Lagerwey, as Meriç has argued. The parties’ arguments about the entire agreement clause in respect of the letter may be left aside for the same reason.

Meriç has also referred to an email dated 8 January 2014, in which Mr [H] wrote to Mr [I]: “please provide us with some kind of a presentation on Lagerwey we can present to potential investors. In my opinion, the presentation should include information on your company (incl. the team), your technology, certificates (if available already) and upcoming certifications, projects that have already been realized, etc.” However, Meriç having asked for information to provide to investors does not imply that it assumed Lagerwey to have committed to provide a Type Certificate before any specific date.

Furthermore, Meriç has referred to an email dated 19 August 2014, in which Mr [D] wrote to Mr [H] “we have our certification in place, so this could not be the problem to get an approval, especially when you keep in mind we already fabricated this generator in house.” Meriç argues that in this email Lagerwey referred to the Type Certificate. However, this email relates to later negotiations on payment terms and not to the Sales Agreement that had been concluded long before, on 12 September 2013. The Type Certificate had not yet been obtained for the L100 WTGs. The certification mentioned in the email must therefore relate to a DECS, a “certification” preceding the Type Certificate. Meriç must have understood this, as it did not ask Lagerwey to provide the Type Certificate, as it would have done if it believed that Lagerwey had obtained it.

The Court, considering all the circumstances of the negotiations leading up to the signing of the Sales Agreement, the evidence provided and the facts that are common ground between the parties, finds that the Sales Agreement does not require Lagerwey to provide a Type Certificate at any specific point in time, such as before that the Hamzabeyli Project would be operational. Consequently, Meriç’s notice dated 14 January 2016 – that it would not proceed with Lagerwey for the Hamzabeyli Project because Lagerwey was “not able to provide us with needed Certificate for Wind turbines” – is unjustified and in breach of the Sales Agreement.

It follows from the above that Meriç’s notice dated 14 January 2016 did not have the legal effect of terminating the Sales Agreement, that Lagerwey did not breach the Sales Agreement, and that Meriç’s appeal against the NCC judgment of 29 June 2022 fails.

In the cross-appeal

As claimed by Lagerwey, the NCC in first instance partially terminated the Sales Agreement with respect to “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”. Neither party challenged this ruling in the appeal or in the cross-appeal. Therefore, the Court accepts that the Sales Agreement is partially terminated.

In view of Article 6:270 Dutch Civil Code (DCC), a partial termination implies a proportional reduction of everything both parties have to perform according to the agreement. In addition, following from Article 6:277 DCC, the party whose breach caused the partial termination must compensate the damages of the other party due to the partial termination.

According to Lagerwey, the partial termination leads to the following. Meriç has paid part of the contract price agreed, but on the other hand Lagerwey has saved costs by not having to perform the Sales Agreement in full. Thus, according to Lagerwey, it has to repay to Meriç an amount of only € 999,054, much less than the NCC in first instance had calculated. Lagerwey calculates this amount of € 999,054 as being the saved costs minus the unpaid part of the contract price, as follows:

Saved costs per WTG:

Generator

€

400,000.00

T-base platform

€

46,646.00

Transport of the components

€

35,000.00

Installation

€

110,000.00

Subtotal per WTG

€

591,646.00

Total savings:

Savings per 2 WTGs

€

1,183,292.00

Crane(de)mobilisation

€

20,000.00

Crane movement

€

20,000.00

Site Facilities

€

10,000,00

Various

€

281,712.00

Total

€

1,515,004.00

Unpaid contract price

€

- 515,950.00

Total to be paid back

€

999,054.00

Meriç disputes this calculation. According to Meriç, Lagerwey thus erroneously includes in its calculation the profit it would have realised with respect to the generators and the other components it will now not have to deliver and acts it will now not have to perform. It points out that, in view of Article 21.3 of the Sales Agreement, the NCC in first instance ruled that Lagerwey is not entitled to these profits, and therefore added these profit margins to the amount of € 999,054.00 as calculated by Lagerwey. In addition, Meriç disputes the amounts listed by Lagerwey as saved costs. According to Meriç these saved costs are in fact much higher.

Loss of profit in connection with Article 21 of the the Sales Agreement

The Court finds as follows. Meriç argues that the profits Lagerwey would have realised with respect to the generators and the other components it will now not have to deliver and acts it will now not have to perform are indirect or consequential losses as mentioned in Article 21.3 of the Sales Agreement. Lagerwey argues that they are not. The words ‘consequential losses’ have no recognised meaning in Dutch law. Therefore, in this respect, too, the Court will have to apply the Haviltex rule of interpretation to decide this dispute.

Neither party argues that Article 21 of the Sales Agreement has been subject to negotiations, or has ever been discussed.

Article 21.1 of the Sales Agreement provides: “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. Article 21.3 of the Sales Agreement provides: “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.” The Sales Agreement thus distinguishes between direct and foreseeable losses and indirect or consequential losses. The Court takes into consideration that Meriç breached the Sales Agreement by refusing, without good reason, to further comply with it. When entering into the Sales Agreement, Meriç should have understood that in such case, Lagerwey’s loss of profit would naturally be a direct and foreseeable result from its refusal to further comply, and that it would therefore be liable for such losses, as provided by Article 21.1. of the Sales Agreement. Meriç has not presented circumstances that could reasonably have made it believe that in such case Lagerwey’s loss of profit should be considered indirect or consequential – that is, due to other or additional circumstances than just only its refusal to further comply with the agreement – in which case Article 21.3 of the Sales Agreement would apply. Consequently, Article 21.1 of the Sales Agreement applies, and not Article 21.3.

The Court does not follow Meriç’s argument that any ambiguity in the language of the Sales Agreement must be for the account of Lagerwey, as the Sales Agreement contains no ambiguity in this respect.

Equally, the Court does not follow Meriç’s reference to the Articles 3.2. and 9.2 of the Sales Agreement. These provisions do not imply that the parties should reasonably have understood that the loss of profit after a partial termination is to be considered indirect or consequential.

As the Court does not share Meriç’s interpretation of Article 21 of the Sales Agreement, the Court accepts Lagerwey’s loss of profit in its calculation of the amount to be paid back.

The amounts listed by Lagerwey as saved costs

Meriç has argued that the calculations of Lagerwey were not sufficiently detailed and lacked supporting evidence, noting that no amount was mentioned for project management or for obtaining the Type Certificate. In addition, Meriç adds to the amounts listed by Lagerwey as saved costs – and thus to the on balance amount calculated by Lagerwey to be paid to Meriç – saved costs for the parts not delivered to Meriç, mainly the towers, including several other components. The Court, however, does not follow this argument. It is true that, as a consequence of the partial termination, Lagerwey is relieved of its obligation to further deliver these components of the WTGs to Meriç, but, as Lagerwey has manufactured these components and has incurred the costs thereof, these costs are no savings.

Meriç argues next that the costs for manufacturing the generators were much higher than € 400,000 as listed by Lagerwey, so that its savings were much higher, and therefore equally the amount to be repaid by Lagerwey. Furthermore, it argues that Lagerwey sold the generators, originally built for Meriç, to a third party, further increasing the savings for Lagerwey by the sales prices it received. Meriç refers to earlier licensing negotiations between the parties. It was then discussed that Lagerwey would give Meriç a licence to build the WTGs in Turkey. Lagerwey then said that the costs for Meriç to build a generator would be € 621,000.00, at the price level of 2012. According to Meriç, it is therefore not conceivable that the costs for Lagerwey in building a similar generator in the Netherlands would only be € 400,000.00.

Lagerwey, however, has explained that the costs for Meriç to build a generator would include a licence fee of € 70,000.00 to be paid by Meriç to Lagerwey. In addition, Lagerwey clarified that the indicated costs for Meriç related to the first five generators to be built by Meriç, including the substantial start-up costs for implementing a new production line. Thus, the costs for Meriç would be significantly higher than for Lagerwey. Meriç has not adequately disputed this reasoning.

At the hearing in first instance Mr [D] mentioned a cost price of € 450,000.00 for a generator, but in a later statement provided to the Court, Mr [D] explained that during the hearing in December 2021 he mixed up different models of generators and their costs. This, too, has not been adequately disputed by Meriç. The Court will therefore follow Lagerwey’s cost price.

Consequently, the Court will follow Lagerwey’s calculation of the amount of € 999,054.00 it has to pay to Meriç. As Lagerwey was ordered by the NCC in first instance to pay to Meriç € 2,010,370.80, and as it did so on 14 July 2022, this implies that Meriç on balance will now have to pay back to Lagerwey the difference, being € 1,011,316.80. The Court will award that amount, to be increased by statutory interest (Article 6:119 DCC) from 14 July 2022 until the date that payment has been made by Meriç in full.

Loss of profit in connection with the Full Service Agreement

In addition to loss of profit in connection with the Sales Agreement, Lagerwey claims loss of profit in connection with the Full Service Agreement that would follow the Sales Agreement, but that was not concluded following the partial termination. Meriç, however, disputes that the Full Service Agreement would have entered into force, as the installation and operation of the WTGs in Hamzabeyli in 2016 may not have been without setbacks.

The Court takes into consideration Article 28.8 of the Sales Agreement that provides: “By signing this Agreement, and before or at the moment the Conditions Precedent have been fulfilled, Parties will also enter into a Full Service Agreement as specified in Annex 18 hereto.” Consequently, the parties agreed to enter into the Full Service Agreement once the WTGs would have been commissioned and the Take Over Certificate would have been signed. The Court does not follow Meriç’s argument that the installation and operation of the WTGs may have encountered setbacks and may never have been realised. Meriç has not adequately substantiated this argument, and as Meriç decided not to comply further with the Sales Agreement, taking away any possibility of trying out the installing of the WTGs at the location in Turkey, Meriç’s reasoning is merely speculative. Consequently, the Court accepts that the WTGs eventually would have been installed and would have become operational.

The Full Service Agreement was inextricably linked to the fulfillment of the Sales Agreement and it was only Meriç’s refusal to complete the Sales Agreement that resulted in the Full Service Agreement not being concluded. Meriç is therefore liable for Lagerwey’s loss of profit in connection with the Full Service Agreement, as in this respect, too, the Court finds that this loss is a direct and foreseeable loss, as meant in Article 21.1 of the Sales Agreement.

Lagerwey has calculated its loss of profit, amounting to € 102,113.00, based on the agreed price minus the saved costs of the service Lagerwey would provide under the Full Service Agreement. Meriç has not adequately contradicted these calculations. Therefore, the amount claimed of € 102,113.00 will be awarded. As to the interest due, the date by which these losses are supposed to have been suffered is hypothetical and highly uncertain. In the absence of any other concrete reference point, the Court will rule that the interest will run as of the date of this judgment.

Storage costs

Lagerwey also claims storage costs for the towers and other components following Meriç’s notice dated 14 January 2016, as follows:

- € 274,290.00 for storage of the WTG towers up to and including July 2023, to

be increased by statutory interest from the due dates of the respective invoices;

- € 76,134.00 for external storage at Vlastuin up to and including July 2023, to be

increased by statutory interest from the due dates of the respective invoices;

- € 12,718.00 per month or part thereof, starting 1 September 2023, as compensation for the storage costs that Lagerwey incurs up to and including the month that Meriç accepts delivery of all WTG components, including the WTG towers, to be increased by the statutory interest from the first day of each month.

Lagerwey argues that it was responsible for the quality of the towers and the other components. In view of Meriç’s notice not to proceed with the Sales Agreement, notwithstanding further correspondence, Lagerwey had no other option but to continue storing these.

The storage costs of the towers

The Court finds as follows. Under the Sales Agreement, Lagerwey was to deliver the towers to Meriç, but it did not do so. Lagerwey argued that it could not move the towers to another location because it needed to preserve the condition of the towers in view of its guarantees. However, the Court fails to see how Lagerwey could be liable for breaching its guarantees given for the installation and commission of the Hamzabeyli Project, as Meriç had informed Lagerwey that it would not be using the WTGs for that project and would store the WTGs at another site. It is true that Meriç’s notice dated 14 January 2016 implied that Meriç did not want the towers any more, but this did not allow Lagerwey to keep the towers stored indefinitely, having the costs running up endlessly. Lagerwey had an obligation to mitigate its damages. It would have been able to do so, by discussing in good faith with Meriç what to do with the towers, and should these discussions be to of no avail, eventually setting a time limit for Meriç to collect the towers, and subsequently selling them should Meriç refuse to collect them. And this all the more after drawing an amount of € 1,341,470.00 under the L/Cs, for the relevant Milestones v and vi of the Sales Agreement, as it was by then no longer entitled to claim retention of title. Not having mitigated its damages as mentioned above, Lagerwey may not claim the storage costs from Meriç, at least not until the judgment of the NCC in first instance dated 29 June 2022, by which Meriç was ordered to make arrangements at its own expense for delivery. Following that order upon Meriç, Lagerwey was entitled to keep the towers stored, awaiting Meriç’s collecting them.

Meriç has argued that following the judgment of the NCC in first instance dated 29 June 2022, (i) Lagerwey waived its rights as the parties were negotiating until 2 December 2022, (ii) that it did attempt to make arrangements for delivery, but could not establish that these components were still in good condition after all these years, and (iii) it could not establish the whereabouts of the towers.

As to the negotiations until 2 December 2022, these may certainly have been appropriate in the given circumstances, but meanwhile, Lagerwey had to keep the towers stored for Meriç, should the outcome be that Meriç would take delivery of the towers.

Meriç’s argument not having been able to establish that these components were still in good condition, is immaterial, as the order makes no reference to the condition of the components.

In respect of not knowing where the towers were, the Court notes that it follows from the correspondence submitted that on 31 October 2022, Meriç’s lawyer was informed that the towers were moved from Çiltuğ to Hareket A.Ş. in Dörtyol at the address Yeniyurt Mevkii Habaş Tesisleri Önü Dörtyol (31900 Hatay Turkiye), and that with several emails Lagerwey informed Meriç of the costs of storage.

It follows from the above that Meriç, with no good reason, did not comply with the order of the NCC in first instance. Lagerwey finally sent Meriç an email on 17 November 2022 setting a deadline for collection until 1 December 2022. The Court finds that Meriç is liable for the storage costs from the date of the order until 1 December 2022. The contractual provision regarding the delivery costs does not take precedence over the duty to comply with a court order. However, following that date, Lagerwey apparently just kept the towers stored and the costs running up again, which it could and should have prevented in view of its obligation to mitigate its damages. Therefore, the Court finds that as of 1 December 2022, Meriç no longer had an obligation to accept delivery of the components at its expense, and thus Meriç is partly successful with its ground for appeal under v and its defence against the cross-appeal (by which Lagerwey amended its claim, to the extent that it only claims acceptance by Meriç of the delivery and no longer that Meriç make arrangements at its expense in this regard).

Thus, the Court finds that Meriç is not liable for the storage costs of the towers until the judgment of the NCC in first instance dated 29 June 2022, that it is liable for the storage costs as of that date until 1 December 2022, and that it is not liable for the storage costs after 1 December 2022. Or, in other words, that Meriç is only liable for the storage costs from 29 June 2022 until 1 December 2022. The Court estimates these costs for July to December 2022 being (5 x € 5,500 =) € 27,500.00.

The transport costs of the towers

The same reasoning holds for the transport costs. The towers were originally stored at the facility of Çiltuğ in Turkey. Çiltuğ notified Lagerwey in 2022 that the storage space would no longer be available. On 8 April 2022, the towers were shipped from Çiltuğ to Hareket in Dörtyol. Logistics+ invoiced Lagerwey € 37,900.00 for this transport. These costs were incurred by Lagerwey before Meriç was ordered by the NCC in first instance to make arrangements at its own expense for delivery of the towers. Given the aforementioned circumstances, the Court finds that, as to these costs, too, Lagerwey must bear these costs for its own account. If it had mitigated its damages, it would not have had to store the towers and they would not have had to be removed.

The storage costs of the other components

The Court accepts that Lagerwey hired external storage space in the Netherlands for the other components. Regarding the period April 2022 to June 2023 Lagerwey claims € 19,002.00. Lagerwey submitted invoices from the company Vlastuin for storage, but these invoices do not show the claim of Lagerwey for costs of an additional 140 square meters for storage. Thus, this claim regarding storage costs of the other components is not adequately substantiated. Therefore, the Court will estimate these costs as follows. As Meriç had until 1 December 2022 to arrange for the transport (see above) Lagerwey had to store the components until that date. After that date it had to mitigate its damages. The Court estimates the costs from 29 June 2022 until 1 December 2022 (approximately one-third of the time claimed) at € 6,500.00 (one-third of the costs).

VAT

Lagerwey also claims the VAT it paid in respect of the towers. The towers were originally stored at the bonded facility of Çiltuğ in Turkey. However, Çiltuğ notified Lagerwey in 2022 that the storage space would no longer be available. On 8 April 2022, the towers were cleared and shipped from the bonded facility of Çiltuğ to Hareket in Dörtyol. Çiltuğ then invoiced Lagerwey, by invoice dated 31 March 2022, € 155,268.00 for Turkish VAT.

Meriç disputes this claim and argues that all costs in relation to clearance and taxes would be Lagerwey's responsibility.

The Court notes that the agreed price in the Sales Agreement is defined as the Contract Price (Article 12.1 of the Sales Agreement) and “excludes all taxes, fees and duties and VAT”. The Court understands this as meaning that the total amount to be paid will be the Contract Price plus any eventual taxes, such as the VAT, being the usual description of price in commercial transactions. Meriç should have understood this in that sense. In addition, Article 12.3 of the Sales Agreement on the terms of payment mentions that the advance payment is payable withing seven business days after signing of the Sales Agreement “providing always that a VAT invoice (where VAT is applicable) has been submitted at signing”. This, too, clearly implies that the VAT is due by Meriç, provided that Lagerwey submitted a VAT invoice where VAT is applicable. Meriç must have understood that the towers at some point in time would no longer be stored in a bonded facility, but would be imported in Turkey, making VAT due.

Meriç has not provided reasons why it should have understood all this differently. Therefore, the Court finds that Meriç must reimburse Lagerwey for the VAT paid. As Lagerwey claims this amount of VAT not as part of the Contract Price, but as costs it has incurred, and thus as damages, commercial interest does not apply. Consequently, the ordinary statutory interest will be awarded.

The penalty claimed by Lagerwey

Lastly, Lagerwey claims that Meriç must accept delivery of the components of the WTG that are currently stored by or at the expense of Lagerwey within one month after the date of the final judgment in appeal, subject to a penalty of EUR 10,000 for each day (or part thereof) that Meriç fails to do so. However, it follows from the above that as of 1 December 2022 Lagerwey had to mitigate its damages by disposing of the WTGs. Meriç therefore no longer had an obligation to arrange or accept delivery, and it can a fortiori not incur a penalty for not complying.

Conclusion in the appeal and the cross-appeal

Meriç fails in the appeal, except that it is partly successful in its ground of appeal under v and its defence against the counter-appeal.

The Court will confirm the NCC judgment in first instance in part, insofar as 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 has no effect, and terminated the parts of the Sales Agreement that have not been performed, and ordered Meriç to pay the costs of the proceedings in the original action.

The Court will annul the NCC judgment in first instance for the rest, and order Meriç to pay the amounts due as mentioned above.

Costs

Meriç is the unsuccessful party in the appeal. Meriç will therefore be ordered to pay the costs in connection with the appeal. The Court will award the costs in appeal on the basis of the ordinary rates applicable in NCCA cases. The Court sets these costs at:

court fee

EUR

21,141.00

lawyer’s fees

EUR

30,600.00

(4.5 × EUR 6,800.00)

total

EUR

51,741.00

In the cross-appeal the Court will rule that the costs are to be set off, so that each party bears its own costs.

The Court will annul the costs awarded in the counter-claim in first instance, as Meriç is now found to be the preponderantly unsuccessful party. The Court sets these costs in the counter-claim to be paid by Meric at:

lawyer’s fees

EUR

4,000.00

(2 × EUR 4,000.00 × 0.5)

This judgment will be enforceable notwithstanding any remedy.

3. The decision

The Court:

in the appeal and the cross-appeal:

confirms the NCC judgment in first instance of 29 June 2022 in part, insofar as the NCC:

- declared that Lagerwey did not breach any of its obligations under the Sales Agreement,

- declared that Meriç 's attempted termination of the Sales Agreement has no effect,

- terminated the parts of the Sales Agreement that have not been performed, and

- ordered Meriç to pay the costs of the proceedings in the original action,

annuls the other parts of the NCC judgment in first instance of 29 June 2022,

orders Meriç:

- to pay back to Lagerwey the amount of € 1,011,316.80, to be increased by statutory interest (Art. 6:119 DCC) as of 14 July 2022 until the day that payment has been made in full,

- to pay to Lagerwey an amount of € 102,113.00 for lost profit in connection to the Full Service Agreement, to be increased by statutory interest (Art. 6:119 DCC) as of the date of this judgment until the day that payment has been made in full,

- to pay to Lagerwey an amount of € 27,500.00 for storage of the WTG towers to be increased by statutory interest (Art. 6:119 DCC) as of the due dates of the respective invoices until the day that payment has been made in full;

- to pay to Lagerwey an amount of € 6,500.00 for storage of the other components, to be increased by statutory interest (Art. 6:119 DCC) as of the date of this judgment until the day that payment has been made in full;

- to pay to Lagerwey an amount of € 155,268.00 for the VAT paid over the WTG towers, to be increased by statutory interest (Art. 6:119 DCC) as of 19 January 2022 until the day that payment has been made in full.

- to pay to Lagerwey its costs of the proceedings in the appeal, set at € 51,741.00,

- to pay to Lagerwey its costs of the proceedings in the counter-claim in first instance, set at € 4,000.00,

- the costs of proceedings mentioned above to be increased by statutory interest (Art. 6:119 DCC) as of 14 days after this judgment until payment is made,

rules that the costs in the cross-appeal are to be set off, so that each party bears its own costs,

declares this judgment enforceable notwithstanding any remedy,

dismisses all other claims.

Done by D.J. Oranje, P.M. Arnoldus-Smit and P.F.G.T. Hofmeijer-Rutten, court of appeal judges, assisted by E.J. Van Veelen, Clerk of the Court.

Issued in public on 16 December 2025.

APPROVED FOR DISTRIBUTION IN eNCC

SIGNATURES

D.J. ORANJE E.J. VAN VEELEN

Presiding Judge Clerk of the Court