The underlying case involved a contract between companies for the supply of energy and, in particular, a jurisdiction clause. Under Italian law, certain so-called particularly onerous clauses require special written consent (“doppia firma”) pursuant to Article 1341(2) of the Italian Civil Code. The provider had argued that it had fulfilled this requirement through a so-called “double confirmation”: In addition to the general acceptance of the general terms and conditions, the customer had to confirm the particularly onerous clauses again by checking a box.

 

The Court of Cassation did not consider this sufficient. In its view, merely checking a box does not meet the requirements for specific written consent. However, for contracts that do not require a statutory written form, the decision states that a simple electronic signature within the meaning of Article 3(10) of the Regulation on Electronic Identification and Trust Services for Electronic Transactions (eIDAS Regulation) may be sufficient. As an example, the decision cites confirmation via a one-time password sent, for instance, by text message or email.

 

And what is the legal situation in Germany?

 

A direct comparison reveals a significant difference: German law generally does not recognize, in business transactions between companies, a requirement for separate consent to certain terms and conditions corresponding to Article 1341(2) of the Italian Civil Code.

 

Rather, Sections 305 et seq. of the German Civil Code (BGB) focus on the effective incorporation of the general terms and conditions and the review of their content. In business transactions between businesses, special simplifications apply under Section 310(1) of the BGB. A separate electronic signature for a jurisdiction, liability, or withdrawal clause is therefore generally not required.

 

However, this does not mean that any solution involving a checkbox is automatically sufficient. In particular, the effective incorporation of the General Terms and Conditions, the specific structure of the contract formation, and the validity of the respective clause remain decisive. In the case of jurisdiction agreements, the specific requirements of Section 38 of the German Code of Civil Procedure (ZPO) (for domestic cases) or Article 25 of the Brussels I Regulation (for cross-border cases) must also be observed.

 

While Italy requires specific, electronically traceable consent for certain clauses, German law places greater emphasis on the effective incorporation and subsequent verification of the general terms and conditions. A simple double-click is therefore not a uniform European legal standard.