The CJEU on Art 23(1) and (2) of the 2007 Lugano Convention

Yesterday (24 November 2022), the Court of Justice delivered the judgment on the case No C-358/21, Tilman SA v. Unilever Supply Chain Company AG.

In the dispute in the main proceeding, Tilman SA, whose registered office is in Belgium, sues Unilever Supply Chain Company AG, whose registered office is in Switzerland, before Belgium courts. The dispute concerns the partial non-payment by Unilever of sums invoiced by Tilman. The contractual framework concluded by the parties specifies that, unless otherwise provided, it was governed by Unilever’s general terms and conditions for the purchase of goods. Those general terms and conditions, which could be viewed and downloaded from a website by means of a hypertext link included in that contract, provided that each party to the contract ‘[would] irrevocably submit to the exclusive jurisdiction of the English courts for the resolution of any dispute which might arise directly or indirectly from the contract’. Thus, the question arises as to whether a jurisdiction clause, granting exclusive jurisdiction to the English court, has been concluded between the parties.

In the decision, the Court of Justice – interpreting the 2007 Lugano Convention in the light of its own case-law on the 1968 Brussels Convention, Regulation (EC) No 44/2001 and Regulation (EU) No 1215/2012, in so far as their relevant Articles are drafted in almost identical terms (par. 34) – stated that Art 23(1) and (2) of the 2007 Lugano Convention “must be interpreted as meaning that a jurisdiction clause is validly concluded where it is 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 viewed, downloaded and printed prior to that contract being signed, without the party against whom that clause operates having been formally asked to accept those general terms and conditions by ticking a box on that website”.

The Explanatory Report by Professor Fausto Pocar to the 2007 Lugano Convention is available here and in RDIPP, 2010, No 1, 244 ff.

On choice of courts agreements, the readers of RDIPP may refer to:

Ilaria Queirolo, 1997, No 3, p. 601 ff.;
Gianluca Contaldi, 1998, No 1, 79 ff.;
Marco Lopez de Gonzalo, Andrea La Mattina, 2012, No 1, 87 ff.;
Francesca C. Villata, 2015, No 4, 973 ff.;
Gaetano Vitellino, 2019, No 4, 999 ff.

Moreover, see, in our Book Series:

Ilaria Queirolo, Book No 51;
Francesca C. Villata, Book No 77.