Case number and/or case name
AG Geldern, 20.4.2011 – 4 C 33/11
Summary
The plaintiff brought an action for damages. He had concluded a contract with the defendant concerning a flight that had been nine hours late. In the general terms and conditions there was a clause saying that all litigations in terms of the contract should fall under the jurisdiction of Irish courts. The general terms and conditions of the defendant had to be accepted by the plaintiff via clicking on a button (so called ‘click-wrapping’).
The court decided that a prorogation of jurisdiction didn’t meet the requirements of Art. 23 (2) Brussels I if it was made in general terms and conditions that were included in the contract via ‘click-wrapping’.
Art. 23 (2) Brussels I intends according to the material of the legislative procedure (COM (1999) 348, 20) that only agreements on international jurisdiction that can be made visible on screen can substitute the written form. It is necessary that the text of the agreement can be permanently recorded. The clicking solely doesn’t ensure that the text of general terms and conditions has been read and printed or otherwise permanently fixed. This accounts for the fact that the ‘click wrapping’ isn’t sufficient for the assumption of a valid prorogation of jurisdiction. Also, the material of the legislative procedure particularly meant contracts that were concluded in electronic form. Given the necessity of a restrictive interpretation of Art. 23 Brussels I it seems reasonable to exclude this way of agreement on the jurisdiction from the scope of application.