European Court of Justice rules on clip wrap agreements

The European Court of Justice (ECJ) has issued its judgment in the case of El Majdoub Jaouad El Majdoub v CarsOnTheWeb.Deutschland GmbH [2015] EUECJ C-322/14. The case concerned the validity of a jurisdiction clause in a sale of goods agreement entered into by the buyer clicking a link on the seller’s website. The court considered Article 23 of the 2001 Brussels Regulation, which provides that a jurisdiction agreement must be made or evidenced in writing. The definition of writing encompasses electronic agreements, providing that the terms of the agreement are properly recorded.

In the case before the court, a purchaser entered into an agreement to buy a car from the seller’s website. The transaction was cancelled by the seller prior to dispatching the vehicle, leading the buyer to issue proceedings in Germany where the seller was based. The seller, however, argued that the German courts did not have jurisdiction to hear the matter because an agreement on the seller’s website provided that the Belgian courts had exclusive jurisdiction in the matter. The buyer challenged this under Article 23 of the Brussels Regulation, arguing that the webpage containing the terms and conditions of sale did not open automatically and a link had to be clicked first.

The ECJ held that the buyer’s argument was not meritorious. It reasoned that the purpose of Article 23 was to treat electronic communications in the same way as written communications; the only relevant requirement is that sufficient durable evidence of the contract should be retained. To this end, the requirement was met by making it possible to save or print the terms before entering into the agreement.

The ruling of the ECJ followed the reasoning of the referring court.

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