In this dispute, a customer of Dutch telecom provider KPN, claimed to have incurred damage as a result of KPN’s failure to timely install a business internet and telephone connection. Under the agreement between the customer and KPN, KPN had agreed to install the connection within four weeks. Due to technical and other difficulties, KPN had failed to do so and ultimately performed its obligations after six weeks instead of four. The appellant, a professional party, argued that it had suffered a loss of nearly EUR 23,000 and it held KPN liable for this loss.

The District Court of The Hague had dismissed the appellant’s claim, based on appellant’s failure to substantiate the damage it claimed to have incurred. Furthermore, the court ruled that the delay did not constitute a default by KPN to perform its duties in these circumstances. In appeal, KPN referred to the applicability of its general conditions, containing an exoneration clause considerably limiting KPN’s liability and carving out the consequential damage claimed by the appellant. The appellant had not contested the general conditions’ applicability, but argued that the exoneration clause was unreasonably onerous and can be nullified if included in general conditions.

KPN argued that, within the telecom sector, exoneration provisions are customary. According to KPN, these are necessary to achieve a proportionate balance between the amount usually payable for its services and the liability exposure KPN would otherwise have vis-à-vis its professional clients. KPN pointed out that this exoneration clause has been used since 1903, initially as a statutory exoneration (prior to KPN’s privatisation). Given the nature of KPN’s obligations, it is – according to KPN – reasonable that it can limit its liability (subject to gross negligence and intent). In addition, in this case the exoneration clause applied between two professional parties. For non-professional consumers, a higher level of protection applies against unreasonably onerous provisions in general conditions.  

The Court of Appeal ruled in KPN’s favour: no evidence was put forward by the appellant to substantiate its claim. The Court of Appeal acknowledged KPN’s interest to make use of exoneration provisions in general and also takes into consideration that the delay in this particular case had not been material. Given the fact that the exoneration clause was fully applicable, the question whether KPN was in default in the first place did not have to be addressed, and, even if it were to be addressed, KPN would still not be liable on the basis of the exoneration clause. (CvM) This case can be found on , LJN=BQ7876