ECLI:NL:RBAMS:2026:5701

1. The procedural history

All submissions were made in eNCC under the NCCR.

Hevec submitted a writ of summons and exhibits.

Eurokeg submitted a statement of defence and exhibits.

The Court held a hearing on the merits on 16 March 2026, the lawyers submitted pleading notes, and the Court discussed the matter with the parties and the lawyers.

Judgement was set for 22 April 2026 and postponed to today.

2. The facts

The [naam 2] family holds all the depositary receipts in Grupo Valle de Paramo B.V. (Grupo Valle de Paramo). The shares in Grupo Valle de Paramo are held by a trust office foundation.

Grupo Valle de Paramo holds all the shares in GVP Acquisition B.V. (GVP Acquisition) and Hevec. Hevec holds all the shares in Hevec Management B.V. (Hevec Management).

Initially GVP Acquisition held 100% of the shares in Eurokeg Holding. On 17 December 2020 [naam 1] acquired 49% of the shares in Eurokeg Holding. The latter holds all the shares in Eurokeg B.V.

After [naam 1] acquired 49% of the shares in Eurokeg Holding, problems arose between the two shareholders. On 1 March 2022 the [naam 2] family and the companies and subsidiaries affiliated with them on the one hand and [naam 1], the companies and subsidiaries affiliated with it and Eurokeg Holding on the other hand entered into a settlement agreement (the Settlement Agreement) in order to settle and make arrangements regarding the various disputes and discussions that had arisen between them. In the Settlement Agreement the parties agreed — among other things — that:

- GVP Acquisition sells its remaining 51% of the shares in Eurokeg Holding to [naam

1], and these shares will be transferred within five business days of the date of the Settlement Agreement (described as the “Closing Date”);

Hevec would, as soon as reasonably possible, sell its real estate as specified in the Settlement Agreement to [naam 1];

a disentanglement of the bank financing with Rabobank in which Eurokeg Holding and Eurokeg B.V. were involved with other subsidiaries affiliated with the [naam 2] family would take place.

Furthermore — insofar as it is relevant here — the Settlement Agreement states: “(…)

- 4 Representations and warranties of GVP Acquisition, Grupo Valle de Paramo, Hevec Management, STAK and Hevec Beheer

(…)

GVP Acquisition, Principal 1 through Principal 4, Grupo Valle de Paramo, STAK, Hevec Beheer and Hevec Management represent and warrant that following the transactions contemplated by this Agreement there are no legal relationships between them and any of the entities affiliated with Eurokeg other than the Hevec Loan.

(…)

- 6 Loans and current account

(…) On the Closing Date, Eurokeg BV shall have a claim of current account receivable in the amount of EUR 409,706 on Hevec Beheer (consisting over an amount of EUR 300,000 as per 31 December 2020 and an additional amount of EUR 109,706 over 1 January 2021 up to the Closing Date) (the " Current Account Receivable ").

In 2020 and 2021, Hevec Beheer has issued a loan to Eurokeg BV (…). The total amount thereof (…) equals an amount of EUR 2,222,581.34 on the date of this Agreement. The Parties hereby agree that:

(i) an amount of EUR 409,706 is hereby set-off (verrekend) with the Current Account Receivable, as a result of which the Current Account Receivable shall amount to EUR 0;

(ii) the remaining amount of EUR 1,812,875.34 (…)(the "Hevec Loan")(…), it shall:

(…)

(b) be repaid in three equal installments of EUR 604,291.78. (…) The first installment shall be payable on 31 December 2024, the second installment shall be payable on 31 December 2025, and the third installment shall be payable on 31 December 2026.

(…)

(h) [naam 1] hereby guarantees the repayment of the Hevec Loan. This means that if Eurokeg B.V. and Eurokeg Holding do not repay the said installments on the maturity dates (…)[naam 1] shall be obliged to pay these installments to Hevec Beheer.

(…)

12 Discharge

naam 1], Eurokeg Holding and Eurokeg BV on one hand, and the other

Parties on the other hand hereby grant each other (…), full and final discharge (volledige en finale kwijting) for any and all existing and future obligations, liabilities, claims and disputes, whether contractual or non-contractual, contingent or noncontingent, all such in the broadest sense, and further waive (kwijtschelden) all such rights and claims thereunder. The full and final discharge and waiver shall in any case apply, but not be limited, to (i) all rights and claims arising out of, or connected to the mutual (direct or indirect) shareholding of [naam 1] and GVP Acquisition in Eurokeg Holding and Eurokeg BV, including the shareholders' agreement in that regard, (ii) any current account agreements and arrangements, (iii) any loans and other financing arrangements, (iv) alleged claims regarding ownership of title of assets and (v) the share purchase agreement pursuant to which [naam 1] has initially acquired shares in Eurokeg Holding. Any cases of fraud, gross negligence (grove nalatigheid) or willful misconduct (opzet or bewuste roekeloosheid).

(…)

- 14 Settlement

(…)

Entire agreement

This Agreement forms the complete reflection of all the agreements made between the Parties concerning all the subjects regulated in this Agreement, and supersedes all previous agreements and undertakings made between the Parties in this respect, both orally and in writing, including any correspondence relating thereto.

Settlement

This Agreement is a settlement agreement within the meaning of Section 7:900 of the DCC. Articles 7:900 to 7:906 of the DCC shall therefore apply.

This Agreement also serves as an evidence agreement within the meaning of Article 7:900(3) of the DCC and Article 153 of the Dutch Code of Civil Procedure.

(…)

- 18 Law and jurisdiction

(…) This Agreement shall be governed by and construed in accordance with the laws of the Netherlands.

(…) All disputes arising out of or in connection with this agreement will be resolved by the Amsterdam District Court following proceedings in English before the Chamber for International Commercial Matters (“Netherlands Commercial Court” or “NCC District Court”), to the exclusion of the jurisdiction of any other Courts.(…) The NCC Rules of Procedure apply (…)”.

On 31 March 2023, [naam 1], Eurokeg Holding and their subsidiaries on the one hand and Hevec and Hevec Management on the other hand signed an addendum (the Addendum) to amend certain arrangements laid down in the Settlement Agreement. These amendments were in regard to:

the real estate: it would no longer be transferred;

the lease agreement in respect of the real estate;

the disentanglement of the bank financing;

an acceleration of the redemption of the Hevec Loan (as defined above in paragraph

Furthermore — insofar as relevant for the case at hand — the Addendum states: “(…)

- 1 General

This Addendum amends or supplements certain of the provisions laid down in the Settlement Agreement (…). Except as otherwise expressly provided in this Addendum, all other provisions of the Settlement Agreement (…) remain unchanged and in full force and effect.

(…)

- 6 Discharge and condition precedent

naam 1], Eurokeg Holding, Eurokeg BV (…) on one hand, and Hevec and Hevec Management on the other hand hereby grant each other full and final discharge (volledige en finale kwijting) for any and all existing and future obligations, liabilities, claims and disputes, whether contractual or non-contractual, contingent or noncontingent, all such in the broadest sense, and further waive (kwijtschelden) all such rights and claims thereunder. (…)”.

- 8 Law and jurisdiction

(…) This Addendum shall be governed by and construed in accordance with the laws of the Netherlands.

(…) All disputes arising out of or in connection with this Addendum will be resolved by the Amsterdam District Court following proceedings in English before the Chamber for International Commercial Matters (“Netherlands Commercial Court” or “NCC District Court”), to the exclusion of the jurisdiction of any other Courts.(…) The NCC Rules of Procedure apply (…)”.

On 27 June 2023 the then CEO of Eurokeg Holding sent an email to Mr [naam 2] in which he wrote:

“ (…) Momenteel zijn wij bezig met de afsluiting van de jaarrekening 2022(…). In januari is er een gesprek geweest tussen jou, [medewerker 1], [medewerker 2] en [medewerker 3] over (…) een positie op de rekening courant van 263.164 euro. Deze positie hebben we onderbouwd met rekeningen van advieskosten van Hevec aan LWC. Deze positie zal einde jaar 2023 worden verrekend met de aflossing zoals staat vermeld in de settlememt agreement van maart 2023. (…)”.

That same day Mr [naam 2] responded by email as follows:

“ (…) Het door jou genoemde bedrag in rekening courant positie komt mij niet bekend voor. Even voor de duidelijkheid: is er sprake van een schuldpositie Eurokeg → Hevec of Hevec → Eurokeg? Wil je me de ontbrekende onderliggende stukken 2022 sturen, zodat ik me die naast de door ons gevoerde administratie kan leggen? (…)”.

Also on 27 June 2023 the CEO of Eurokeg replied by e-mail as follows:

“(…) Het gaat om bedragen die EuroKeg aan Hevec heeft betaald in de periode van 1 januari 2022 tm einde maart 2022. (…)”.

On 2 January 2025, the then financial controller of one of the subsidiaries of Eurokeg Holding sent an email to Mr [naam 2] stating:

“(…) Hierbij de laatste betaling conform de settlement agreement, hierin zijn de onderstaande verrekeningen gedaan.

Third payment Settlement agreement

604.291,78

Settlement Current account between Eurokeg vs Hevec Beheer

-263.164,20

Settlement VAT audit Germany 17/18/19

-47.539,83

Settlement invoice 240902 Inventory koperslagersweg 4

-91.820,85

Payment to Hevec Beheer BV on 31-122024

201.766,90

(…)”.

On 8 January 2025, in response to the email of 2 January 2025, Hevec’s lawyer wrote to Eurokeg’s lawyer as follows:

”(…) On 2 January 2025, Eurokeg Group claimed to be able to offset (verrekenen) the instalment in the amount of EUR 604,291.78 with (…)Invoice Inventory Koperslagersweg 4 (…)VAT Germany 17/18/19 (…) and (…)Eurokeg - Hevec account(…). Please note that a full and final discharge has been agreed to in Clause 6.1 of the Addendum (…) Considering this discharge, [naam 1] and

Eurokeg Group's alleged claims (if any), that were sett of with the final payment

under the Addendum are "existing and future claims" and can therefore no longer be recovered. Solely the claim of EUR 91,820.85 (Invoice Inventory

Koperslagersweg 4) was the result of the lease agreement, and is accepted. (…)”.

Hevec initiated summary proceedings against Eurokeg, claiming payment of €310,704.03 under the Settlement Agreement. In its 21 March 2025 judgment the Court rejected Eurokeg’s set-off argument for a VAT claim for €47,539.83, but concerning a current account claim of €263,164.20, the Court provisionally (“voorshands”) accepted the set-off.

Following the Court’s judgment in summary proceedings, Eurokeg paid to Hevec €47,539.83.

3. The claims

Hevec’s demand is that the Court issue a judgment, enforcable notwithstanding any remedy and to:

establish that Eurokeg Holding, Eurokeg B.V. and [naam 1] are bound to perform their obligations under the Settlement Agreement and the Addendum and that the current account claim of €263,164.20 (the 2022 Current Account Claim) cannot be set off against the final instalment on the Hevec Loan (the Settlement Amount);

order Eurokeg Holding, Eurokeg B.V. and [naam 1] to pay to Hevec the remaining part of the Settlement Amount plus statutory (commercial) interest;

establish that Eurokeg Holding, Eurokeg B.V. and [naam 1] are jointly and severally liable for the damages on the side of Hevec as a result of their failure to perform under the Settlement Agreement and the Addendum;

order Eurokeg Holding, Eurokeg B.V. and [naam 1] to pay € 5,000.00 per day they do not fully comply with the order under ii;

order Eurokeg to pay the extra judicial costs of €6,675.00,

plus the costs of these proceedings and post-judgment costs and statutory interest.

Eurokeg opposes the claim and requests the Court to reject it and to order Hevec to pay the costs of the proceedings including the legal advisor’s fees and any subsequent costs.

4. Discussion

The Court has jurisdiction; Dutch law applies

Since the parties have opted explicitly and in writing in both the Settlement Agreement and the Addendum to litigate in English before the NCC District Court and all other requirements in Article 1.3.1 of the NCCR are met, the Court has jurisdiction in this case.

Article 18.2 of the Settlement Agreement and Article 8.2 of the Addendum stipulate 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 applies.

The heart of the matter: can the 2022 Current Account Claim be set off against Hevec’s claim?

In these proceedings, the Settlement Amount as claimed by Hevec is in itself not in dispute between the parties. Instead, Eurokeg argues that it can set off Hevec’s claim against its 2022 Current Account Claim. In response, Hevec argues that — based on the discharge provisions in the Settlement Agreement and the Addendum — Eurokeg’s set-off argument must be rejected.

The set-off argument must be rejected: the 2022 Current Account Claim is within the scope of the discharge provisions in the Addendum

Contrary to the ruling in the summary proceedings, the Court rules that Eurokeg’s purported 2022 Current Account Claim is within the scope of the discharge provisions of the Addendum. Eurokeg can therefore not set off this claim with the amount it is required to pay under the Settlement Agreement and the Addendum. Consequently, the question whether Eurokeg has sufficiently substantiated the 2022 Current Account Claim in itself can be left unaddressed. The Court explains this as follows.

The dispute between parties whether the 2022 Current Account Claim may be set off against Hevec’s claim, pivots around the scope of the discharge provisions in the Settlement Agreement and the Addendum. To determine their scope, these provisions must be interpreted.

According to standard case law of the Supreme Court, the question on how a contract provision 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 provision 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. However, all facts and circumstances of the given case remain decisive, but only if and in as far as a party has relied on those other facts and circumstances and has sufficiently substantiated these allegations.1

Taking into consideration that the parties agree on the fact that their dispute relates to a detailed commercial contract, concluded between professional parties who have exchanged several drafts, were assisted by expert advisers during the contract negotiations and have included an ‘entire agreement’ clause in their contract, as a starting point, great weight must be given to the most obvious linguistic meaning of the contract.2

The Court furthermore notes that the Addendum stipulates that it amends or supplements certain provisions laid down in the Settlement Agreement and that, except as otherwise expressly provided in the Addendum, all other provisions of the Settlement Agreement remain unchanged and in full force and effect. This means that the Addendum needs to be interpreted in conjunction with the Settlement Agreement. In that respect it is relevant that the Settlement Agreement expressly states that it is a settlement agreement within the meaning of Section 7:900 of the Dutch Civil Code (DCC). This therefore also applies to the Addendum and more specifically to the discharge provision.

The origin of the Settlement Agreement was to resolve the disputes and discussions between the parties regarding their joint shareholding. Part of the Settlement Agreement was to settle the current account position between Hevec and Eurokeg. This is addressed in Article 6.1 of the Settlement Agreement. Article 6.1 of the Settlement Agreement fixes the Current Account Receivable at €409,706.00 and provides a time period ‘up to the Closing Date’ which — as confirmed by the parties at the hearing — was 8 March 2022.

The Settlement Agreement furthermore stipulates in Article 4.5 that following the transactions contemplated by the Settlement Agreement, there would be no legal relationship between the parties. It is, however, not in dispute that in spite of Article 4.5. of the Settlement Agreement, the current account relationship between the parties continued after the Closing Date. Apparently, it was not communicated adequately to the people in Eurokeg’s financial department to discontinue the current account relationship. Eurokeg seems to have continued to make payments for Hevec in 2022, which payments were then booked in the current account position between Eurokeg and Hevec.

The discharge provisions in both the Settlement Agreement and the Addendum are formulated very broadly. Based on a purely text-based interpretation, these provisions must be understood as to prevent Eurokeg from making any additional Current Account claim outside the scope of Article 6.1 of the Settlement Agreement.

Both parties state that they — more specifically their respective representatives at the negotiation table —were not aware that the current account relationship had continued during 2022 when they agreed upon the Addendum in 2023. This lies at the heart of Eurokeg’s argument: as these representatives were not aware of the 2022 Current Account Claim, the discharge provisions in the Settlement Agreement and the Addendum do not cover this claim.

The Court is, however, of the opinion that the Current Account Claim does fall under the discharge provision in the Addendum. In that regard it is relevant that the Addendum is the result of disputes which arose between the parties in 2022 regarding the Settlement Agreement and its execution. An essential part of the Settlement Agreement was not executed: the real estate transaction that was envisaged did not take place. Hevec agreed to the Addendum in order to put an end to the ongoing discussion since the signing of the Settlement Agreement.

This course of events supports Hevec’s position that the Addendum and the discharge provisions therein were intended to settle the overarching dispute between the parties regarding their settlement once and for all and thereby to cover not only the “known unknowns” but also the “unknown unknowns”. This is further evidenced by the broad wording of the discharge provisions in the Addendum which not only covers existing but also future claims. It follows that Hevec could reasonably expect that a current account claim as the one at hand, would fall under the broad scope of the discharge provision in the Addendum, regardless of whether or not the representatives of the parties were actually aware of such a specific claim when signing the Addendum. In that respect it is relevant that the current account relationship already fell within the scope of the Settlement Agreement, whilst the representatives of Eurokeg could have been aware of the 2022 Current Account Claim as it was part of the financial records of Eurokeg and furthermore Eurokeg, in its Statement of Defence, writes that Eurokeg had been trying since January 2023 to get payment of the current account receivable built up over the year 2022. The fact the people at the negotiation table on behalf of Eurokeg were apparently not adequately informed is at the risk of Eurokeg. They could and should have verified internally if there were any remaining issues. In this regard, the Court takes into account that the interpretation of the discharge provisions must be based solely on what was actually agreed upon (‘what is’), and not on what might have been agreed upon had the parties been fully aware of all the circumstances (‘what if’).3

The Court concludes that a reasonable person in the same circumstances as the parties would have understood the 2022 Current Account Claim to fall within the scope of the discharge provisions and therefore that this claim was settled as part of the Settlement Agreement and the Addendum. This means Eurokeg’s interpretation of the discharge provisions in the Settlement Agreement and the Addendum are rejected and Eurokeg does not have a claim to set off.

Eurokeg must pay the remaining part of the Settlement Amount

Therefore, the Court will grant the declaration of 3.1 (i) and 3.1 (ii), and order Eurokeg to pay to Hevec the remaining part of the Settlement Amount, being €263,164.20, plus statutory commercial interest from 1 January 2025.

No damages, no penalty (3.1 (iii) and (iv)

The Court will reject the request to declare that Eurokeg is liable for damages as Hevec has not argued that it has suffered any loss as a result of a breach under the Settlement Agreement or the Addendum, which is not covered by the awarded interest.

Since this ruling pertains to a payment obligation for Eurokeg under the Hevec

Loan, the Court cannot and therefore will not impose a penalty on Eurokeg as claimed by Hevec (the request under 3.1 (iv) (Article 611a Dutch Code of Civil Procedure (DCCP)).

Judgment enforceable notwithstanding appeal

Pursuant to Article 233 DCCP, as a rule, a judgment is enforceable pending appeal, without the need for the party who obtained the judgment to provide security. An exception to this rule may be justified where the interest of the party against whom judgment is obtained in maintaining the existing situation during appeal or its interest in security being provided, outweighs the interest of the party obtaining the judgment in immediate enforcement and in not having to provide security.4 In this case the Court sees no indication that Hevec is in a financially difficult position in which a payment under this ruling would entail a risk of non-recovery for Eurokeg. Furthermore, no evidence was furnished to the Court that Eurokeg did rely on any other circumstances justifying such an exception. Therefore, the judgment will be declared enforceable notwithstanding appeal.

Costs

Since Eurokeg is the unsuccessful party, it will be ordered to pay Hevec’s costs. These costs are calculated as follows:

writs of summons €238.80 (2 x €119.40)

legal fees: €13,500 (3 x €4,500)

Court fee: €19,518

total: €33,256.80

Also, the claim for payment of post-judgment costs will be allowed as specified in the decision below.

Hevec also claims €6,675.00 for extra judicial costs. This claim is denied as Hevec has not substantiated that any extra judicial actions were undertaken to collect the debt.

5. Decision

The Court:

declares that Eurokeg is bound to perform its obligations under the Settlement Agreement and the Addendum in the sense that the 2022 Current Account Claim cannot be set off against the Settlement Amount;

orders Eurokeg Holding, Eurokeg B.V. and [naam 1] jointly and severally:

- to pay to Hevec the sum of €263,164.20, plus statutory commercial interest (Article

6:119a BW) as from 1 January 2025 to the day of payment;

- to pay the costs of these proceedings, quantified at €33,256.80 for Hevec, plus the post-judgement costs of €189.00 to be paid within seven days after this judgment, under the provision that if these costs are not paid promptly, statutory interest will be due from the eighth day onward to the date of payment; to be increased by €98.00 and the costs of service if Eurokeg fails to comply and this judgment is served;

declares that paragraph 5.2 of this judgment is enforceable notwithstanding appeal;

denies all other claims.

Done by D.E. Alink, A.C. Bordes and N.A.J. Purcell, Judges, assisted by M.C. Laagland-de Haan, Clerk of the Court.

Issued in public on 3 June 2026.

APPROVED FOR DISTRIBUTION IN eNCC

Dutch Supreme Court 13 April 1981, ECLI: NL:HR:1981:AG4158 and the District Court of Amsterdam 29 June 2022, ECLI:NL:RBAMS:2022:3747, para. 5.8.

Dutch Supreme Court 19 January 2007, ECLI:NL:HR:2007:AZ3178 and Dutch Supreme Court 29 June 2007, ECLI:NL:HR:2007-BA4909.

Dutch Supreme Court 9 December 2016, ECLI:NL:HR:2016:2821.

Dutch Supreme Court 20 December 2019, ECLI:NL:HR:2019:2026, para. 5.8.