EUPillar C-322/14 Jaouad El Majdoub v CarsOnTheWeb.Deutschland GmbH (Third Chamber)

Summary

The case was referred to the CJEU in German proceedings between Mr El Majdoub, a German car dealer, and CarsOnTheWeb.Deutschland GmbH, a German company, in relation to his internet purchase of an electric car from the website of the defendant. After the purchase, the defendant cancelled the sale because of damage allegedly sustained by the vehicle. However, Mr El Majdoub alleged it was cancelled because the low sale price was disadvantageous to the seller and brought an action in Germany seeking the transfer of ownership of the vehicle. The defendant alleged that the German court did not have jurisdiction since the general terms and conditions for internet sales transactions contained an agreement conferring jurisdiction on the courts in Leuven, Belgium. Mr El Majdoub claimed that the jurisdiction agreement was not validly incorporated into the sale agreement, as it was not in writing in accordance with the requirements in Art 23(1)(a) of Brussels I. The German court asked the CJEU whether ‘click-wrapping’, by which a purchaser agrees to the general terms and conditions of sale on a website by clicking on a hyperlink which opens a window, meets the requirements of Art 23(2) of Brussels I. The CJEU noted that the purchaser expressly accepted the general terms and conditions by clicking the relevant box on the seller’s website. The Third Chamber stated that Art 23(2) was not in the Brussels Convention and was included in Brussels I in order to treat durable forms of electronic communication as equivalent to “writing”. The CJEU gave a “literal” interpretation to Article 23(2), noting that the validity of the jurisdiction agreement depends on the “possibility” of providing a durable record regardless of whether the electronic communication has actually been durably recorded by the purchaser before or after clicking the box. It was satisfied that the mere “possibility” of being able to record the agreement was consistent with an “historical and teleological” interpretation of the Regulation by referring to the Pocar Report on the Lugano Convention (which interprets the same text as that agreed in the original Brussels I Regulation) and by referring to the Commission’s Explanatory Memorandum on its proposal for the Brussels I Regulation in 1999. The CJEU noted that the fact that the webpage containing that information does not open automatically on registration on the website and during each purchase cannot call into question the validity of the jurisdiction agreement. Although in its interpretation of Art 5(1) of Directive 97/7/EC on the protection of consumers in respect of distance contracts in Case C 49/11 Content Services the CJEU found that that a business practice consisting of making information accessible only via a hyperlink on a website does not meet the requirements of that provision and a website cannot be regarded as a ‘durable medium’ within the meaning of the provision, the CJEU stated that that interpretation cannot be applied to Art 23(2) of Brussels I, since the wording (the Directive required that the consumer must “receive” written confirmation or confirmation in another durable medium) and objectives of the provisions are different (the Directive is aiming for consumer protection whereas Art 23(2) of Brussels I applies to commercial contracts). It ruled that accepting the general terms and conditions of a contract for sale by ‘click-wrapping’ concluded by electronic means, which contains a jurisdiction agreement, constitutes a communication by electronic means which provides a durable record of the agreement within the meaning of Art 23(2), where, as in this case, it is possible to print and save the text of those terms and conditions before the conclusion of the contract. This is a correct interpretation of Article 23(2) taking full account of a literal, historical and teleological approach.