Compliance with the information duty by hyperlink to general terms and conditions

The applicability of a choice-of-court clause in general terms and conditions referred to by a hyperlink in the contract does NOT require the other party to have ticked a separate box for consent to the applicability of those GT&C. The European Court of Justice clarified this in its Tilman v. Unilever judgment (ECJ 24 November 2022, ECLI:EU:C:2022:923, C‑358/21). The judgment raises the question how easy it must be to find the GT&C via the hyperlink. According to the ECJ, it must be possible for the other party to consult the GT&C when exercising ordinary care. Perhaps this criterion should also apply under Dutch law to the voidability of other clauses in GT&C for breach of the duty to make the other party aware of the GT&C. In any event, it would be more practical if the same criterion applied to these two information duties (i.e. the information duty that is relevant to the question whether a choice-of-court clause applies, and the information duty of Article 6:233(b) of the Dutch Civil Code). A user of GT&C would then only have to take one criterion into account in this respect when entering into a contract.