In its decision of 24.11.2022 (C-358/21), the Court of Justice of the European Union has decided on the effectiveness of a jurisdiction clause contained in the general terms and conditions to which the contract concluded in writing refers by the inclusion of a hypertext link to a website, access to which allows those general terms and conditions to be read and saved. The decision concerned the interpretation of Art. 23 of the Lugano Convention of 30 October 2007, which corresponds to Art. 23 of the Brussels I Regulation, old version, and Art. 25, new version, and thus has considerable significance in cross-border B2B business.

Specifically, the case concerned the dispute between Tilman SA, based in Belgium, and Unilever Supply Chain Company AG, based in Switzerland. Unilever was sued before a Belgian court. However, Unilever’s general terms and conditions provided for the jurisdiction of the English courts, therefore Unilever complained about the lack of international jurisdiction of the court addressed due to the agreement on the place of jurisdiction.

It was uncontested that the general terms and conditions were not made available to the contractual partner, nor did the contractual partner expressly accept the general terms and conditions by clicking on them (“click-wrapping”) when concluding the contract. The CJEU thus had to deal with the question whether the possibility for the contractual partner to permanently access the general terms and conditions of the user by means of a hyperlink contained in the contract was sufficient within the meaning of Art. 23 of the Lugano Convention. The CJEU affirmed that this was the case. In our view, this decision has to be endorsed, given the evolution of how transactions are carried out in the digital age.