EuGH; 2022-11-24; C-358/21
Judgment;Summary;Decision by national courts in the field of European Union law — ECLI:EU:C:2022:923
Date: 2022-11-24
Language of the case: French
Court formation: Seventh Chamber
Subject matter: Area of freedom, security and justice;Judicial cooperation in civil matters;Lugano Convention
Procedure: Reference for a preliminary ruling
Origin: Belgium;Germany

Summary C-358/21 – 1 
Case C-358/21 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
9 June 2021 
Referring court: 
Cour de cassation (Belgium) 
Date of the decision to refer: 
20 May 2021 
Appellant in cassation: 
Tilman SA 
Respondent in cassation: 
Unilever Supply Chain Company AG 
  
Brief summary of the facts and the procedure in the main proceedings 
1 In 2010, the appellant, Tilman SA, a company governed by Belgian law, 
concluded with Unilever Supply Chain Company AG, a company governed by 
Swiss law, an agreement entitled the Unilever Purchasing Contract (‘the UPC’), 
by which the appellant undertook to wrap and package boxes of tea bags for a 
fixed price. In 2011, the parties signed a second agreement amending the price 
agreed. Following a change in the method of operation, a dispute arose in relation 
to the increase in the price charged by the appellant and the respondent paid the 
invoices only in part. The appellant brought proceedings against the respondent 
for payment of the outstanding amounts. 
2 Before the court of first instance, the respondent contended that, in accordance 
with its general terms and conditions, only the English courts have jurisdiction to 
hear and determine the dispute. By judgment of 12 August 2015, the court of first 
instance ruled that the Belgian courts have jurisdiction to hear and determine the 
dispute, but that the contract is governed by, and must be interpreted in 
accordance with, English law. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-358/21 
 
2  
3 The appellant lodged an appeal against that judgment. In its view, the contract 
must be governed by, and interpreted in accordance with, Belgian law, pursuant to 
its own general terms and conditions. The respondent brought a cross appeal, 
claiming that it is not the Belgian courts which have jurisdiction but rather the 
English courts. 
4 The judgment delivered on 12 February 2020 by the Cour d’appel de Liège (Court 
of Appeal, Liège) (‘the judgment under appeal’) allowed the appeals, upheld the 
plea alleging a lack of jurisdiction raised by the respondent and held that, pursuant 
to the clause conferring jurisdiction contained in the respondent’s general terms 
and conditions, the Belgian courts have no jurisdiction to hear and determine the 
dispute that has arisen from the performance of the contract at issue. 
Main arguments of the parties to the main proceedings 
5 Before the Cour de cassation (Court of Cassation, Belgium), the appellant has put 
forward one ground of appeal, alleging infringement of Article 23(1) and (2) of 
the Convention on jurisdiction and the recognition and enforcement of judgments 
in civil and commercial matters, signed in Lugano on 30 October 2007 (OJ 2009 
L 147, p. 5) (‘the Lugano II Convention’), in so far as the judgment under appeal 
treats the agreement at issue in the same way as a contract concluded online in the 
context of which the buyer is required to tick a box stating that he accepts the 
seller’s general terms and conditions before being able to finalise his purchase and 
finds, therefore, that the appellant’s consent to the clause conferring jurisdiction 
contained in the respondent’s general terms and conditions is established because 
the appellant signed the contract at issue without reservation after having had the 
opportunity to take note of those general terms and conditions, download them 
and print them, without it being ensured that they were actually communicated to 
the appellant. 
6 The agreement at issue states that, unless otherwise provided by contract, it is 
subject to the general terms and conditions for the purchase of goods [set out] at 
https://e4us.unilever.com, in other words the general terms and conditions 
available on the respondent’s website. 
7 Those general terms and conditions of purchase include: 
– Article 1.2, pursuant to which, by accepting the UPC, the supplier agrees that 
those terms and conditions form part of the UPC and apply to it, to the 
exclusion of all other terms and conditions, and that they govern the contractual 
relations between the parties, together with the provisions of the UPC; and 
– Article 15.9, under which the English courts have jurisdiction to hear and 
determine any dispute in connection with the contract, and that contract is 
governed by, and to be interpreted in accordance with, English law. 
TILMAN 
 
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The dispute concerns whether that agreement conferring jurisdiction – or choice 
of forum clause – was properly concluded between the parties and, therefore, 
whether it is enforceable against the appellant. 
The parties agree that the Lugano II Convention is applicable. 
8 Article 23 of the Lugano II Convention provides: 
‘1. If the parties, one or more of whom is domiciled in a State bound by this 
Convention, have agreed that a court or the courts of a State bound by this 
Convention are to have jurisdiction to settle any disputes which have arisen or 
which may arise in connection with a particular legal relationship, that court or 
those courts shall have jurisdiction. Such jurisdiction shall be exclusive unless the 
parties have agreed otherwise. Such an agreement conferring jurisdiction shall be 
either: 
(a) in writing or evidenced in writing; or 
(b) in a form which accords with practices which the parties have established 
between themselves; or 
(c) in international trade or commerce, in a form which accords with a usage of 
which the parties are or ought to have been aware and which in such trade or 
commerce is widely known to, and regularly observed by, parties to contracts of 
the type involved in the particular trade or commerce concerned. 
2. Any communication by electronic means which provides a durable record of 
the agreement shall be equivalent to ‘writing’. 
…’ 
9 That provision is identical to Article 23 of Council Regulation (EC) No 44/2001 
of 22 December 2000 on jurisdiction and the recognition and enforcement of 
judgments in civil and commercial matters (OJ 2001 L 12, p. 1; ‘the Brussels I 
Regulation’) (replaced with effect from 10 January 2015 by Regulation (EU) 
No 1215/2012 of the European Parliament and of the Council of 12 December 
2012 on jurisdiction and the recognition and enforcement of judgments in civil 
and commercial matters, OJ 2012 L 351, p. 1, ‘the Brussels Ia Regulation’). The 
objective of the Lugano II Convention signed by the Member States of the 
European Union with Iceland, Norway and Switzerland is to extend to those three 
States the rules contained in the Brussels I Regulation. 
10 In view of that objective, of the substantial connection existing between the 
Lugano II Convention and the Brussels I Regulation and of the fact that the 
Lugano II Convention is an integral part of EU law and that the Court therefore 
has jurisdiction to rule on the interpretation of its provisions vis-à-vis their 
application by the courts of the Member States, ‘any court applying and 
interpreting this Convention shall pay due account to the principles laid down by 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-358/21 
 
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any relevant decision concerning the provision(s) concerned or any similar 
provision(s) of the 1988 Lugano Convention and the instruments referred to in 
Article 64(1) of the Convention rendered by the courts of the States bound by this 
Convention and by the Court of Justice of the [European Union]’ (that is to say, 
inter alia, the Brussels I Regulation) (Article 1 of Protocol 2 to the Lugano II 
Convention). 
11 Article 23(1) and (2) of the Lugano II Convention must therefore be interpreted in 
accordance with the case-law of the Court of Justice of the European Union on 
Article 23 of the Brussels I Regulation. 
12 The Court’s interpretation of the provisions of the Brussels Convention of 
27 September 1968, the predecessor to the Brussels I Regulation, likewise applies 
to that regulation in so far as their provisions may be regarded as equivalent 
(judgment of 23 October 2014, flyLAL-Lithuanian Airlines, C-302/13, 
EU:C:2014:2319, paragraph 25 and the case-law cited). 
13 According to the Court, the purpose of the formal conditions laid down in 
Article 23 of the Brussels I Regulation (previously Article 17 of the Brussels 
Convention of 27 September 1968) is to ensure that the consent of the parties is 
genuine. If one of the formal conditions laid down in Article 23 is satisfied, 
consent is established (judgment of 24 June 1981, Elefanten Schuh, 150/80, 
EU:C:1981:148, paragraph 29). 
14 The issue is relatively simple when the general terms and conditions are annexed 
to the contract itself. Matters are more complicated when that is not the case. In its 
examination of the conditions to which proof of the genuine nature of one 
contracting party’s consent to a clause conferring jurisdiction contained in the 
general terms and conditions of the other contracting party is subject when those 
terms and conditions are not annexed to the contract itself, the Court of Appeal 
referred to the guidance provided in the judgments of 14 December 1976, Estasis 
Saloti di Colzani (24/76, EU:C:1976:177) and of 21 May 2015, El Majdoub 
(C-322/14, EU:C:2015:334) and took the view that: 
– with regard to the condition that, where the general terms and conditions are 
not annexed to the contract itself, reference must be made to them expressly in 
that contract, the contract at issue communicated by the respondent for 
signature by the appellant expressly provides that it is governed by the 
respondent’s general terms and conditions, unless otherwise provided in the 
contract or in other agreements concluded between the parties; 
– with regard to the condition that it must be possible for a person exercising 
ordinary care to check the reference to those general terms and conditions, the 
contract at issue indicates the hypertext link which allows the appellant to 
access the respondent’s general terms and conditions; the court of first instance 
noted that that link redirects to a page displaying two tabs, a ‘Log on’ tab and a 
‘General Supplier Information’ tab, the latter of which leads to a page from 
TILMAN 
 
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which various documents can be downloaded, including the general terms and 
conditions of purchase; it is established that the parties are to use English in all 
their commercial transactions, which, on the basis of the evidence adduced, are 
conducted solely by electronic means; the appellant is therefore familiar with 
the IT tools and ‘new communication techniques’ and has never expressed the 
slightest concern that it had been unable to access the respondent’s general 
terms and conditions; 
– with regard to the condition that it must be possible for the general terms and 
conditions communicated by electronic means to be recorded in a durable 
format, a mere ‘possibility’ is sufficient; the page of the respondent’s website 
on which its general terms and conditions appear and to which access is 
provided via a hypertext link must allow those terms and conditions to be 
printed and saved before the contract is concluded; the court of first instance 
noted that the respondent’s general terms and conditions were one of the 
documents available for download by the appellant and could therefore be 
printed, and the appellant signed the contract at issue without reservation after 
having had the opportunity to take note of the respondent’s general terms and 
conditions, download them and print them. 
15 Before the Court of Cassation, the appellant states that it is not in dispute that it 
signed a contract which contained merely a reference to the respondent’s general 
terms and conditions, which are available on the latter’s website. The judgment 
under appeal wrongly treats the agreement at issue in the same way as a ‘contract 
concluded online’ in the context of which the buyer is required ‘to tick a box 
indicating (that he) accepts the seller’s general terms and conditions before being 
able to finalise his purchase’. The appellant was in no way prompted to accept the 
respondent’s general terms and conditions formally by clicking on the 
corresponding box on the latter’s website. It therefore follows that the guidance 
provided by case-law and applied by the court of appeal cannot be transposed to 
the specific situation brought before it, since the situation in which a party signs a 
document which contains a reference to general terms and conditions that are 
accessible online differs from that in which that party formally and directly agrees 
to those general terms and conditions by ticking a relevant box. 
16 It therefore concludes that the judgment under appeal is not legally justified in so 
far as it rules that the appellant’s consent to the clause conferring jurisdiction 
contained in the respondent’s general terms and conditions is established because 
the appellant signed the contract at issue without reservation after having had the 
opportunity to take note of those general terms and conditions, download them 
and print them – thereby finding simply that the respondent’s general terms and 
conditions were accessible – but fails to ensure that they were actually 
communicated to the appellant and that the appellant expressly agreed to them, 
even though the conditions to which the validity of clauses conferring jurisdiction 
are subject are to be interpreted strictly in so far as they pursue the overriding 
objective of ensuring that the consent of the interested parties is genuine. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-358/21 
 
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Question referred for a preliminary ruling 
17 The Court of Cassation considers that, in order to examine that ground of appeal, 
the following question must be referred to the Court of Justice of the European 
Union for a preliminary ruling: 
‘Are the requirements under Article 23(1)(a) and (2) of the Convention on 
jurisdiction and the recognition and enforcement of judgments in civil and 
commercial matters, signed in Lugano on 30 October 2007, satisfied where a 
clause conferring jurisdiction is contained in general terms and conditions to 
which a contract concluded in writing refers by providing the hypertext link to a 
website, access to which allows those general terms and conditions to be viewed, 
downloaded and printed, without the party against whom that clause is enforced 
having been asked to accept those general terms and conditions by ticking a box 
on that website?’