Two companies from two different EU Member States have entered into a contract in 2014 by exchanging forms via e-mail.
In particular, the Italian developer signed an order form, in which the general conditions of the contract were provided, as well as the Internet address at which the clauses could be consulted. Among the general contractual terms and conditions, the exclusive jurisdiction of the German judge was also stated.
Therefore, when the Italian company brought the German company before the Court of Milan for breach of contract, the latter appealed in cassation, on the basis of the above-mentioned exclusive jurisdiction agreement.
The Joined Chambers of the Court of Cassation, upheld the application of the German appellant, in accordance with the case law of the European Court of Justice. According to it, if the jurisdictional clause is contained in the general conditions of the contract available through access to a website, then this indicates an electronic communication. Thus, a long term record of said clause is possible, since the electronic communication enables the recipient to print and save the conditions aforementioned before concluding the contract. (Judgement of 21 May 2015, C322/14, Cars in the web)
It is considered that said principle does not only apply to the clauses determining the jurisdiction, but more broadly to the general contractual terms and conditions. These can be made available on the entrepreneur’s website, while it will be sufficient that the forms (such as the order form) clearly indicate where the terms of the contract can be found and consulted.