Up to now, Belgian case-law and legal doctrine finds that simply mentioning “see the general conditions on our website” (or similar terms) in a purchase order or invoice does not suffice as a valid and prior notice of them in a B2B contractual relationship. In the Netherlands, however, this is a perfectly accepted and customary practice.
But this is all about to change for Belgium after the Court of Cassation rendered its judgment of 30 March 2023 (in French).
This case concerns a written contract between the Belgian company Tilman and the Swiss company Unilever. The contract contained a hyperlink to Unilever’s website, where Unilever’s general conditions could be found, so one could read them, download them, and print them. Subsequent to a dispute concerning invoices that Tilman protested, Tilman sued Unilever before a Belgian court. Unilever invoked the exclusive forum clause in its general conditions, which designated jurisdiction to the English courts, and contended that the Belgian courts have no jurisdiction to adjudicate the dispute. Tilman challenged the application of Unilever’s general conditions.
The Court of Cassation has now confirmed that a contracting party can invoke a forum clause that is included in the general conditions to which a written contract refers by way of a hyperlink. The fact that the co-contracting party did not accept the general conditions by ticking the relevant box on the website is irrelevant. The Court of Cassation concluded this after it had submitted a request to the European Court of Justice for a preliminary ruling on the subject-matter (see judgment of 24 November 2022).
Referring to the general conditions by including in a written contract a hyperlink to a website therefore makes it possible for a party to note the general conditions, to download them, and to print them—before signing the contract.
Although this ruling centers on a specific context, namely the validity of a forum clause in an international dispute, we believe that these principles can be adopted and applied fully to a Belgian context, regardless of the clause in question in a set of general conditions.
Articles III.74 §1, 9° and III.75, 3° of the Code of Economic Law stipulates that a service provider must make its general conditions known to its client by (for example) publishing them on a URL that it has communicated to the client and that the client can easily and electronically access. The term “service” must be interpreted broadly here and in accordance with the Services in the Internal Market Directive. The term services means any economic activity that is normally provided for remuneration, so they therefore, in principle, include the supply of goods and services.
Article III.74, § 1, 9° of the Code of Economic Law imposes an obligation on a company, in the same way that is stipulated in Article III.75 of the same Code, to make available to the client of its services the general conditions that it uses and in the different language versions in which these could be read.
The information must be clear, unambiguous, and made available timely before the conclusion of any contract or, if there is no written contract, before the delivery of the goods or the provision of the service. (Art. III. 77 Code of Economic Law).
Article III.75, 3° Code of Economic Law stipulates that a company, on its own initiative, must make available to its client the information described in Article III.74 of the same Code. The company must do this by communicating a URL to the client, who can access the information easily. Therefore, this is not an “active” obligation to inform, so we believe that it can be sufficient if you mention in your purchase orders and invoices that the client can refer to your website for your general conditions.
It remains to be seen whether case-law will follow this new position. There are good reasons to do so, anyway. In the meantime, it is best that you play it safe and send a copy of your general conditions together with your price quotations, purchase orders, and contracts.