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Jurisdiction clauses concluded by hypertext link to general conditions

The European Court of Justice, by a judgement dated 24 November 2022 (case C-358/12, Tilman c. Unilever) issued a decision of great practical importance, relating to cases, which are frequent also for contracts of carriage, where there is a reference to general terms and conditions that are not physically attached to the contractual document and are instead indicated as available by means of a hypertext link to a website.

The judgement refers to art. 23 of the 2007 Lugano Convention, whose text corresponds to that of art. 25 Regulation 1215/2012. In both cases there must be an agreement by the parties on the jurisdiction clause. However, the wording of the article and the case law of the Court, have led to a degree of flexibility in evaluating the formal requirements upon which the control of the effectiveness of the agreement depends.

In this case there was a written contract, signed by the parties, which was made subject to Unilever’s general conditions, which included a clause providing for the exclusive jurisdiction of English Courts. Such general conditions were accessible by means of a link to a website, where they could be downloaded and printed; However, there was no box to be ticked to indicate acceptance of the general conditions.

According to the Court, a contract concluded in this way satisfied the formal requirements of the second paragraph of art. 23, stating that “Any communication by electronic means which provides a durable record of the agreement shall be equivalent to <writing>”.

Two considerations appear to have been relevant in the reasoning of the Court, namely that (i) the reference in the contract to the general conditions was explicit in such a way that it could be checked by a party exercising ordinary diligence and that (ii) the general conditions were made available by means of the hypertext link and could be downloaded and printed before signing the contract. In reaching this conclusion the Court appears to have been influenced by the fact the proceedings involved a contractual relationship between commercial undertakings.

Marco Lopez De Gonzalo

marco.lopez@mordiglia.it