On 21 May 2015, in decision C-322/14 (you can read the judgement here), the Court of Justice of the European Union clarified the conditions to render general terms provided on a website, in particular a jurisdiction clause contained therein, effective against a professional. As was to be expected, the conditions for effectiveness are substantially different from those applicable to consumers.
Please find below a brief analysis of this decision.
The facts
A car dealer, established in Germany, purchased a car on the website of a company also established in Germany but whose parent company is in Belgium.
The sale was cancelled for various reasons by the seller but the purchaser, who saw things differently, brought proceedings before a German court seeking to enforce the sale.
The seller refused to recognise the jurisdiction of the German court, based on the general terms and conditions of sale, which contained a jurisdiction clause in favour of a Belgian court. The purchaser, on the other hand, argued that this clause was not enforceable on the ground that the general conditions did not meet the requirements of Article 23(2) of Regulation (EC) No 44/2001, insofar as the webpage containing the general conditions of sale did not automatically open upon registration and upon every individual sale. On the contrary, it was first necessary to click on a box containing the mention "click here to open the conditions of delivery and payment in a new window" (a technique known as click-wrapping).
The purchaser claimed that the requirements of Article 23(2) of the Brussels I Regulation had not been met as the window containing the general terms and conditions did not open automatically.
Since Article 23(2) merely stipulates that any electronic transmission of an agreement must allow a durable record thereof to be made, the referring court asked the Court of Justice whether Article 23(2) of the Brussels I Regulation must be interpreted as meaning that the method of accepting general terms and conditions of an electronically concluded contract for sale (containing an agreement conferring jurisdiction) by ‘click-wrapping’ constitutes a communication by electronic means capable of providing a durable record of the agreement, within the meaning of that provision.
The Court examined several issues.
Strict interpretation of Article 23(2)
The Court first recalled that Article 23 should be interpreted strictly insofar as it derogates from both the general rule of jurisdiction in favour of the courts of the State in which the defendant is domiciled, laid down in Article 2 of the Brussels I Regulation, and the special jurisdiction provided for by Articles 5 to 7.
Agreement
The Court then verified if the jurisdiction clause had formed the object of an express agreement. It noted that the purchaser had expressly accepted the seller's general terms and conditions, by ticking the relevant box on the seller's website.
A durable record of the agreement
The Court noted that it follows from a literal interpretation of Article 23(2) that this provision only requires there to be the "possibility" of providing a durable record of the general terms and conditions containing the jurisdiction clause, regardless of whether the general terms and conditions were actually durably recorded by the purchaser before or after ticking the box accepting them.
This means that it is sufficient for the purchaser to have had the possibility to make a durable record of or to print the general terms and conditions in order for them to be effective against him; it is not necessary that a durable record thereof actually have been made.
In this judgment, the Court interprets the conditions for the effectiveness of general conditions against a professional co-contracting party rather loosely.
This is in stark contrast to the rules applicable to consumers.
In Content Services (C 49/11, EU:C:2012:419 ), a case with roughly similar circumstances (a box to be ticked to accept general terms and conditions and a hyperlink to a website where the general terms and conditions could be found), the Court ruled that a hyperlink to a website cannot replace the provision of information or constitute a durable record.
According to the Court, consumers must actually be provided with the general terms and conditions, without having to click on a link to another webpage and, moreover, they must be able to save the general conditions on a durable medium, i.e. one which guarantees that their content will not be altered and that the information will remain accessible for an adequate period of time, and which gives consumers the possibility of reproducing them unchanged.
