B2B contracts: Link reference to GTC is sufficient

Since I create many software contracts, the question arises again and again whether and how GTC can be included in such contracts, for example whether they have to be attached to the contract. Surprisingly, the ECJ has to deal with this issue and has ruled under case number C-358/21 that it is sufficient for the inclusion of GTCs if the contract contains a link to the website where the relevant GTCs can be viewed and downloaded. This is therefore sufficient for the possibility of reasonable notice. In the present case, the question was whether a specific place of jurisdiction had been agreed.

A separate checkbox, which would have documented the inclusion of the GTC, is not required. The ruling thus corresponds to what I have been communicating to clients for years, namely to finally only refer to T&Cs in online stores and not to still demand the “acceptance” of the T&Cs. Indeed, the latter have been shown to reduce the rate of successful contracting.

The court on this:

In the present case, it is apparent from the documents before the Court that the clause conferring jurisdiction at issue in the main proceedings is contained in Unilever’s general terms and conditions, to which express reference is made in the written contract concluded between the parties. Since the situation is one in which, as in the present case, the general terms and conditions in which the jurisdiction clause is contained are not directly attached to the contract as an annex, it must be stated that such a clause cannot be considered as a jurisdiction clause under the rule set out in para. 37 to 45 of the present judgment, if the text of the contract itself, signed by both parties, expressly refers to these general terms and conditions containing this clause.

And further

However, this only applies in the case of a clear indication that a party can follow up by exercising normal diligence and only if it is established that the general terms and conditions containing the jurisdiction clause were actually received by the other party (judgment of 7 July 2016, Hőszig, C-222/15, EU:C:2016:525, para. 40). In the present case, it is not in dispute that the text of the contract at issue in the main proceedings contains such a clear indication, which the plaintiff in the main proceedings is entitled to pursue, but that is a matter for the referring court to determine. Therefore, it is necessary to verify whether the General Terms and Conditions have actually been received by this contracting party.

This was the opinion of the court:

Since pursuant to Art. 23 para. 2 of the Brussels I Regulation, as interpreted by the Court of Justice, the transmission of the information in question takes place when it can be made visible via a screen, the reference in the written contract to general terms and conditions by indicating the hyperlink to a website via which it is in principle possible to take cognizance of those general terms and conditions, provided that that hyperlink functions and can be opened by a party with normal diligence, must a fortiori be regarded as proof that that information has been received. In such a case, that result cannot be called into question by the fact that there is no box on the website in question that could be clicked to declare that those general terms and conditions are accepted or that the page containing the general terms and conditions does not open automatically when that website is accessed (cf. in this sense, judgment of 21 May 2015, El Majdoub, C-322/14, EU:C:2015:334, para. 39), since it is possible to access these general terms and conditions before signing the contract and the acceptance of these terms and conditions takes place by means of signature by the contracting party concerned.

Moreover, since the mere possibility of saving and printing out general terms and conditions prior to the conclusion of the contract is sufficient to satisfy the formal requirements, it is irrelevant whether the information transmitted has been “issued” by the company concerned or “received” by the contractual partner.

The provisions of Art. 23 para. 1 of the Brussels I Regulation is based on the desire to take into account commercial practices, but to deprive such jurisdiction clauses of their effect, which could be introduced unnoticed into the contractual relationship, such as such clauses that are found on business correspondence forms or on invoices, if they have not been accepted by the party to whom they are referred (cf. in this sense, judgments of 24 June 1981, Elefanten Schuh, 150/80, EU:C:1981:148, para. 24, and of 7 July 2016, Hőszig, C-222/15, EU:C:2016:525, para. 36).

This should be a nice relief for contractors and also make contracts a bit shorter.

Although the ECJ has also made it clear that it has not examined and did not have to examine the requirements of consumer protection law, the fairly clear provisions in the German Civil Code do not give any reason to view this legal issue differently for consumers, at least not as long as it is not a matter of concrete indications in the area of gambling and the like.

Author: Marian Härtel

Marian Härtel ist Rechtsanwalt und Fachanwalt für IT-Recht mit einer über 25-jährigen Erfahrung als Unternehmer und Berater in den Bereichen Games, E-Sport, Blockchain, SaaS und Künstliche Intelligenz. Seine Beratungsschwerpunkte umfassen neben dem IT-Recht insbesondere das Urheberrecht, Medienrecht sowie Wettbewerbsrecht. Er betreut schwerpunktmäßig Start-ups, Agenturen und Influencer, die er in strategischen Fragen, komplexen Vertragsangelegenheiten sowie bei Investitionsprojekten begleitet. Dabei zeichnet sich seine Beratung durch einen interdisziplinären Ansatz aus, der juristische Expertise und langjährige unternehmerische Erfahrung miteinander verbindet. Ziel seiner Tätigkeit ist stets, Mandanten praxisorientierte Lösungen anzubieten und rechtlich fundierte Unterstützung bei der Umsetzung innovativer Geschäftsmodelle zu gewährleisten.