Explosive rise in gas prices qualifies as unforeseen circumstance not requiring full performance of supply agreement
20 December 2022
The connection to and transport of heat and CO2 over the designated networks is not regulated.[1] Connecting companies to the grid and supplying the ‘commodities’ is therefore a matter of negotiating and contracting. In this situation (where there is no supply within the meaning of the Heat Act) also the extent to which supply is guaranteed is determined solely by the agreement. This can create problems for customers: in the event only one producer is connected to the grid, the supply is entirely dependent on this producer. A number of horticulturist in Zeeuws-Vlaanderen were confronted with this situation when they were no longer supplied with sufficient heat and CO2 as a result of a shutdown of production by Yara Sluiskil.
On 18 October 2022, the Rotterdam court in preliminary relief proceedings ruled on the preliminary relief proceedings regarding this matter, initiated by the horticulturist against WarmCO2, Yara Sluiskil and North Sea Port Netherlands.[2] The claim for performance of the supply agreement was dismissed, given that in the court’s view the explosive rise in gas prices presented an unforeseen circumstance for WarmCO2. The court ruling shows, however, that these kinds of claims are very much intertwined with the facts of the case and may just as well turn out differently, for example in proceedings on the merits or in the event the agreement has been worded in a slightly different manner. Indeed, the court in preliminary relief proceedings is very critical of WarmCO2, Yara and NSP, so it was certainly not a done deal.
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