Forum selection clauses in general terms and conditions published on a websites are valid and enfroceable under Article 23 Regulation (EC) No. 44/2001.
6sicuro S.p.a. (hereafter, “6sicuro”), a company having its leagl seat in Italy, entered into a contract with Sociomantic Labs GmbH (hereafter, “Sociomantic Labs”), a German company, whereby the latter undertook to provide the former advertising services on the web.
The contract was made through the exchange of emails and the client signed the related confirmation order, where the link to the general terms and conditions published on the service provider’s website was mentioned.
On February 2016, 6sicuro sued Sociomantic Labs before the Milan Distric Court, claiming it had suffered damages from the alleged breach of contract by the service provider.
The defendant did not appear before the sezied court, but rather submitted a pleading to the Court of Cassation (a sc. ricorso per regolamento preventivo di giurisdizione), seeking for a declaration of lack of jurisdiction of Italian courts, on the grounds of the choice of Berlin courts made in the general terms and conditions that the claimant in main proceedings had agreed upon.
6sicuro challenged the plea by stating that the general terms and conditions where contrary to Directive 2000/31/EC, that the forum selection clause had to be considered as “non existent”, since it was nowhere to be found in the general terms and conditions that had actually been agreed upon when the contract was entered into, and that, in any case, the clause lacked of the formal requirements provided for in Art. 23 Regulation (EC) No. 44/2001 (as replaced by Art. 25 Regulation (EU) No. 1215/2012).
The Court of Cassation held, in the first place, that the forum selection clause had to be construed as being exclusive for the purposes of Art. 23 Regulation (EC) No. 44/2001, which indeed applied in the present case since – according to the court – Regulation (EU) No. 1215/2012 applies only to contracts made after the 10th of January 2015, pursuant to Art. 81 thereof.
Secondly, by quoting the European Court of Justice (ECJ, judgment of the 21th of May 2015, C-322/13, Cars on the Web), the court held that the forum selection clause complied with the formal requirements mentioned in Art. 23(1) Regulation (EC) No. 44/2001. In particular, the jurisdiction agreement was entered into by an electronic means which provided a durable record of the same, considering that the general terms and conditions could have been printed and saved before entering the contract.
Nonetheless, 6sicuro averred that its counterparty had not provided sufficient evidence as to the fact that the general terms and conditions could have been printed and saved, nor that the latter were made available on the website when the contract was made, and neither that their text was actually the same as the one submitted in court.
These statements were deemed ungrounded, given that, on the one hand, when signing the confirmation order, 6sicuro stated it had read the general terms and conditions published in Sociomantic Labs’s webiste, and, on the other hand, the Italian company had sent a complaint letter where the same general terms and conditions were mentioned.
Furthermore, 6sicuro’s claims were not upheld by the court since the company had not maintained that the forum selection clause had been changed over time, but rather that the whole general terms and conditions had.
Thirdly, the court dismissed 6sicuro’s argument that the forum selection clause had to be specifically agreed upon, that Directive EC/2000/31 should have applied in the present case, that the clause had been poorly drafted and thus was misleading. As to the latter argument, in fact, 6sicuro underlined that the clause, which read “This contract is governed by German law. EU commerce law is excluded. Place of jurisdiction is Berlin”, had been poorly translated from German into English.
In the light of all the above, the court concluded by stating: “Therefore, in the presence of a valid forum selection clause, having an exclusive nature, in favour of the judicial authority of a foreign country, the lack of jurisdiction of the Italian judge must be declared”.
This is the first time the Court of Cassation has considered the issue of forum selection clauses in general terms and conditions published on a website. Actually, a lower court, the Turin District Court had already faced the issue.
This said, the court applied Art. 23 Regulation (EC) No. 44/2001, when it should have applied Art. 25 Regulation (EU) No. 1215/2012 instead, under Article 66(1) thereof. In fact, unlike Regulation (EC) No. 593/2008 (replacing the 1980 Rome Convention), to determine its scope ratione temporis, Regulation (EU) No. 1215/2012 does not take into account the date when the disputed contract was made, but rather the time when proceedings are commenced. In the present case, proceedings were commenced on the 18th of March 2016 and, according to the mentioned provision, Regulation (EU) No. 1215/2012 applies to claims filed from the 10th of January 2015 onward.
The court also confirmed that forum selection clauses need not to be specifically agreed upon (under Article 1341 Italian Civil Code).
Finally, though irrelevant for the purposes of the decision, indeed had the disputed forum (and law) selection clause been poorly translated. In fact, the German general terms and conditions of Sociomantic Labs (see https://www.sociomantic.com/tos/de/) provide for the exclusion of the CISG (“Es gilt das Recht der Bundesrepublik Deutschland unter Ausschluss des UN Kaufrechts”), that in the English version of the same general terms and conditions has been translated into the exclusion of a non existent “EU commerce law”.
Turin District Court, Company’s Division, court order of the 13th of May 2013, published in Rivista di diritto internazionale privato e processuale, No. 5/2015, pp. 567 and ff.