Article 23(1) of the Brussels I Regulation requires an agreement conferring exclusive jurisdiction to be in writing or evidenced in writing. Article 23(2) provides that any communication by electronic means which provides a durable record of the agreement shall be regarded as equivalent to "writing".
The CJEU clarified that Article 23(2) does not require the jurisdiction agreement to have actually been printed or saved by one of the contracting parties. The only condition is that it should be 'possible' to provide a durable record of the agreement.
These proceedings arose in the context of the sale of a car to the applicant on the defendant's website. The sale was cancelled by the defendant before the transfer, due to damage allegedly sustained by the car, which was noted during preparations for its transport to the applicant. Taking the view that the reason given was only a pretext for the cancellation of the sale, which was disadvantageous to the defendant on account of the low sale price, the applicant sought to bring proceedings in Germany, where the defendant was established, seeking an order that the defendant transfer ownership of the car. The defendant, however, contended that the German courts had no jurisdiction because of an agreement on its website conferring jurisdiction on the courts in Belgium, where its parent company, the main contracting party, was based.
The applicant challenged the validity of the jurisdiction agreement, claiming that it was not in "writing" in accordance with the requirements in Article 23(1). He contended that whilst a potential purchaser had to expressly accept the defendant's general terms of sale by clicking on the relevant box before making a purchase, that operation did not automatically lead to the opening of the webpage containing the general terms and conditions of sale. Instead, an extra click on a box with the indication 'click here to open the conditions of delivery and payment in a new window' was necessary (known as 'click wrapping'). The applicant claimed that the requirements of Article 23(2) are met only if the window containing those general terms and conditions opens automatically.
The CJEU agreed with the referring court that the fact that the terms and conditions page did not open automatically was irrelevant. The purpose of Article 23 was to treat electronic communications in the same way as written communications provided that they offered the same sort of guarantees in terms of evidence of the contract. For this, it was sufficient that it was 'possible' to save and print the terms and conditions information (i.e. to provide to a durable record of the agreement) before conclusion of the contract. Accordingly, the CJEU ruled that the 'click-wrapping' technique fulfils the requirements in Article 23 of the Brussels I Regulation.
As the formal requirements for jurisdiction agreements in the Recast Brussels Regulation are unchanged from those in the Brussels I Regulation, this decision remains of relevance under Article 25 of the Recast Brussels Regulation.
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